exv10w2






EXHIBIT 10.2




EXECUTION COPY




TERM LOAN AGREEMENT




dated as of




July 3, 2008




among




ALON REFINING LOUISIANA, INC.,




ALON REFINING KROTZ SPRINGS, INC.,




THE LENDERS PARTY HERETO




and




CREDIT SUISSE,

as Administrative Agent and Collateral Agent




 





CREDIT SUISSE SECURITIES (USA) LLC,

as Sole Bookrunner and Sole Lead Arranger





[CS&M Ref. No. 05865-445]



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	Definitions; Construction
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01.   Defined Terms

	 	 	2	 
	SECTION 1.02.   Terms Generally

	 	 	35	 
	SECTION 1.03.   Accounting Terms; GAAP; Pro Forma Calculations

	 	 	35	 
	SECTION 1.04.   Effectuation of Transactions

	 	 	36	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	The Credits
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01.   Commitments and Loans

	 	 	36	 
	SECTION 2.02.   Loans

	 	 	36	 
	SECTION 2.03.   Borrowing Procedure

	 	 	37	 
	SECTION 2.04.   Evidence of Debt; Repayment of Loans

	 	 	38	 
	SECTION 2.05.   Fees

	 	 	39	 
	SECTION 2.06.   Interest on Loans

	 	 	39	 
	SECTION 2.07.   Default Interest

	 	 	39	 
	SECTION 2.08.   Alternate Rate of Interest

	 	 	40	 
	SECTION 2.09.   Termination and Reduction of Commitments

	 	 	40	 
	SECTION 2.10.   Conversion and Continuation of Borrowings

	 	 	40	 
	SECTION 2.11.   Repayment of Borrowings

	 	 	42	 
	SECTION 2.12.   Optional Prepayments

	 	 	43	 
	SECTION 2.13.   Mandatory Prepayments

	 	 	43	 
	SECTION 2.14.   Reserve Requirements; Change in Circumstances

	 	 	45	 
	SECTION 2.15.   Change in Legality

	 	 	46	 
	SECTION 2.16.   Indemnity

	 	 	47	 
	SECTION 2.17.   Pro Rata Treatment

	 	 	47	 
	SECTION 2.18.   Sharing of Setoffs

	 	 	48	 
	SECTION 2.19.   Payments

	 	 	48	 
	SECTION 2.20.   Taxes

	 	 	49	 
	SECTION 2.21.   Replacement of Lenders Under Certain Circumstances; Duty to Mitigate

	 	 	51	 
	SECTION 2.22.   Parent Change of Control Put

	 	 	52	 
	SECTION 2.23.   Debt Service Reserve Account

	 	 	53	 
	SECTION 2.24.   Debt Service Reserve Support LC

	 	 	53	 






 i 





 









 








	 	 	 	 	 
	 	 	Page
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	Representations and Warranties
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01.   Organization; Powers

	 	 	54	 
	SECTION 3.02.   Authorization; Absence of Conflicts

	 	 	55	 
	SECTION 3.03.   Enforceability

	 	 	55	 
	SECTION 3.04.   Governmental Approvals

	 	 	55	 
	SECTION 3.05.   Financial Statements

	 	 	56	 
	SECTION 3.06.   No Material Adverse Change

	 	 	56	 
	SECTION 3.07.   Title to Properties; Possession Under Leases

	 	 	56	 
	SECTION 3.08.   Subsidiaries

	 	 	57	 
	SECTION 3.09.   Litigation; Compliance with Laws

	 	 	57	 
	SECTION 3.10.   Agreements

	 	 	57	 
	SECTION 3.11.   Federal Reserve Regulations

	 	 	58	 
	SECTION 3.12.   Investment Company Act

	 	 	58	 
	SECTION 3.13.   Use of Proceeds

	 	 	58	 
	SECTION 3.14.   Tax Returns

	 	 	58	 
	SECTION 3.15.   No Material Misstatements

	 	 	58	 
	SECTION 3.16.   Employee Benefit Plans

	 	 	59	 
	SECTION 3.17.   Environmental Matters

	 	 	59	 
	SECTION 3.18.   Insurance

	 	 	59	 
	SECTION 3.19.   Security Documents

	 	 	59	 
	SECTION 3.20.   Location of Real Property

	 	 	60	 
	SECTION 3.21.   Labor Matters

	 	 	61	 
	SECTION 3.22.   Solvency

	 	 	61	 
	SECTION 3.23.   Concerning Holdings and the Borrower

	 	 	61	 
	SECTION 3.24.   Sanctioned Persons

	 	 	61	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	Conditions
	 	 	 	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	Affirmative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01.   Existence; Businesses and Properties

	 	 	66	 
	SECTION 5.02.   Insurance

	 	 	67	 
	SECTION 5.03.   Obligations and Taxes

	 	 	70	 
	SECTION 5.04.   Financial Statements, Reports, Etc

	 	 	70	 
	SECTION 5.05.   Litigation and Other Notices

	 	 	73	 
	SECTION 5.06.   Maintaining Records; Access to Properties and Inspections;
Maintenance of Ratings

	 	 	74	 
	SECTION 5.07.   Use of Proceeds

	 	 	74	 
	SECTION 5.08.   Senior Indebtedness Designation

	 	 	74	 






 ii 




 









 








	 	 	 	 	 
	 	 	Page
	SECTION 5.09.   Further Assurances; Collateral

	 	 	75	 
	SECTION 5.10.   Additional Subsidiaries

	 	 	75	 
	SECTION 5.11.   Crack Spread Hedging Agreement

	 	 	76	 
	SECTION 5.12.   Concerning Revolving Availability

	 	 	76	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	Negative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01.   Indebtedness

	 	 	76	 
	SECTION 6.02.   Liens

	 	 	78	 
	SECTION 6.03.   Sale/Leaseback Transactions

	 	 	79	 
	SECTION 6.04.   Investments, Loans, Advances, Guarantees and Acquisitions

	 	 	79	 
	SECTION 6.05.   Mergers, Consolidations and Other Fundamental Changes

	 	 	81	 
	SECTION 6.06.   Asset Sales

	 	 	81	 
	SECTION 6.07.   Hedging Agreements

	 	 	82	 
	SECTION 6.08.   Restricted Payments; Certain Payments of Indebtedness; Payments
under the Earnout Agreement

	 	 	82	 
	SECTION 6.09.   Transactions with Affiliates

	 	 	84	 
	SECTION 6.10.   Business of Holdings and Subsidiaries

	 	 	85	 
	SECTION 6.11.   Restrictive Agreements

	 	 	85	 
	SECTION 6.12.   Amendment of Material Documents

	 	 	85	 
	SECTION 6.13.   Debt Service Coverage Ratio

	 	 	86	 
	SECTION 6.14.   Leverage Ratio

	 	 	86	 
	SECTION 6.15.   Capital Expenditures

	 	 	86	 
	SECTION 6.16.   Fiscal Year

	 	 	86	 
	SECTION 6.17.   Preferred Equity Interests

	 	 	87	 
	SECTION 6.18.   No Foreign Subsidiaries

	 	 	87	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	Events of Default
	 	 	 	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	The Administrative Agent and the Collateral Agent
	 	 	 	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01.   Notices

	 	 	93	 
	SECTION 9.02.   Survival of Agreement

	 	 	94	 
	SECTION 9.03.   Binding Effect

	 	 	94	 
	SECTION 9.04.   Successors and Assigns

	 	 	94	 






 iii 




 









 








	 	 	 	 	 
	 	 	Page
	SECTION 9.05.   Expenses; Indemnity

	 	 	97	 
	SECTION 9.06.   Right of Setoff

	 	 	99	 
	SECTION 9.07.   Applicable Law

	 	 	99	 
	SECTION 9.08.   Waivers; Amendment

	 	 	99	 
	SECTION 9.09.   Interest Rate Limitation

	 	 	100	 
	SECTION 9.10.   Entire Agreement

	 	 	100	 
	SECTION 9.11.   WAIVER OF JURY TRIAL

	 	 	101	 
	SECTION 9.12.   Severability

	 	 	101	 
	SECTION 9.13.   Counterparts

	 	 	101	 
	SECTION 9.14.   Headings

	 	 	101	 
	SECTION 9.15.   Jurisdiction; Consent to Service of Process

	 	 	102	 
	SECTION 9.16.   Confidentiality

	 	 	102	 
	SECTION 9.17.   Release of Collateral and Guarantees

	 	 	103	 
	SECTION 9.18.   Intercreditor Agreement

	 	 	104	 
	SECTION 9.19.   USA PATRIOT Act Notice

	 	 	104	 
	SECTION 9.20.   No Fiduciary Relationship

	 	 	104	 
	SECTION 9.21.   Non-Public Information

	 	 	105	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	Casualty and Condemnation Proceeds
	 	 	 	 
	 
	 	 	 	 
	SECTION 10.01.   Insurance Proceeds

	 	 	105	 
	SECTION 10.02.   Disposition of Insurance Proceeds

	 	 	105	 
	SECTION 10.03.   Condemnation Proceeds

	 	 	107	 
	SECTION 10.04.   Disposition of Condemnation Proceeds

	 	 	108	 
	SECTION 10.05.   Material Casualty or Condemnation

	 	 	108	 
	SECTION 10.06.   Proceeds Collateral Account

	 	 	109	 
	SECTION 10.07.   Default or Event of Default

	 	 	109	 
	SECTION 10.08.   Risk of Loss

	 	 	109	 






 iv 




 









 








	 	 	 	 	 
	SCHEDULES:	 	 	 	 
	 
	 	 	 	 
	Schedule 1.01

	 	-
	 	Excluded Mortgaged Properties
	Schedule 2.01

	 	-
	 	Commitments
	Schedule 3.08

	 	-
	 	Subsidiaries
	Schedule 3.10

	 	-
	 	ExxonMobil Pipeline Supply Contracts
	Schedule 3.17

	 	-
	 	Environmental Matters
	Schedule 3.18

	 	-
	 	Insurance
	Schedule 3.20(a)

	 	-
	 	Owned Real Property
	Schedule 3.20(b)

	 	-
	 	Leasehold Real Property
	Schedule 3.20(c)

	 	-
	 	Pipeline Rights of Way; Easements
	Schedule 5.02

	 	-
	 	Insurance Requirements
	Schedule 6.01

	 	-
	 	Existing Indebtedness
	Schedule 6.02

	 	-
	 	Existing Liens
	Schedule 6.04

	 	-
	 	Existing Investments






	 	 	 	 	 
	EXHIBITS:	 	 	 	 
	 
	 	 	 	 
	Exhibit A

	 	-
	 	Form of Assignment and Acceptance
	Exhibit B

	 	-
	 	Form of Borrowing Request
	Exhibit C

	 	-
	 	Form of Compliance Certificate
	Exhibit D

	 	-
	 	Form of Guarantee and Collateral Agreement
	Exhibit E

	 	-
	 	Form of Holdings Subordination Agreement
	Exhibit F

	 	-
	 	Form of Intercreditor Agreement
	Exhibit G

	 	-
	 	Form of Perfection Certificate






v









 





     TERM LOAN AGREEMENT dated as of July 3, 2008, among ALON REFINING
LOUISIANA, INC., a corporation organized under the laws of the State of
Delaware (“Holdings”); ALON REFINING KROTZ SPRINGS, INC., a corporation
organized under the laws of the State of Delaware and a wholly owned
subsidiary of Holdings (the “Borrower”); the Lenders; and CREDIT SUISSE,
Cayman Islands Branch, as the Administrative Agent and the Collateral
Agent.



          WHEREAS the Borrower has entered into the Stock Purchase Agreement (such term and each other
capitalized term used but not defined in the preamble above or in these recitals having the meaning
assigned to it in Article I), pursuant to which it will acquire (the “Acquisition”) from Valero
Refining and Marketing Company, a corporation organized under the laws of the State of Delaware
(the “Seller”), all the issued and outstanding Equity Interests of Valero Refining
Company-Louisiana, a corporation organized under the laws of the State of Delaware (the “Acquired
Company”), which owns a refinery located in Krotz Springs, Louisiana (the “Krotz Springs Refinery”)
and assets related thereto, for an aggregate consideration of $333,000,000 in cash (the
“Acquisition Consideration”), subject to adjustment as set forth therein;




          WHEREAS immediately following the consummation of the Acquisition, the Borrower will merge
with and into the Acquired Company, with the Acquired Company being the surviving person in such
merger (the “Merger”);




          WHEREAS in connection with the Acquisition, the Borrower will enter into the Revolving Credit
Agreement, which shall provide, subject to the terms and conditions thereof, for asset based
revolving extensions of credit in an initial aggregate principal amount of $400,000,000;




          WHEREAS in connection with the Acquisition, the Borrower has entered into the Crack Spread
Hedging Agreement and, as support for the Borrower’s obligations thereunder, the Borrower will
deposit for the benefit of the Crack Spread Hedging Counterparty cash collateral in an amount of
$50,000,000; and




          WHEREAS in connection with the foregoing, the Borrower has requested the Lenders to extend
credit in the form of Loans in an aggregate principal amount of not more than $302,000,000, the
proceeds of which will be used solely to finance, in part, the Acquisition Consideration, the Crack
Spread Hedging Cash Collateral and the Transaction Costs.




          NOW, THEREFORE, the Lenders are willing to extend such credit to the Borrower on the terms and
subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:




 









 





2


ARTICLE I




Definitions; Construction




          SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:




          “ABL Availability” shall have the meaning assigned to the term “Availability” in the Revolving
Credit Agreement, and shall be determined in a commercially reasonable manner pursuant to the terms
of the Revolving Credit Agreement, or any replacement credit agreement in respect of the Permitted
ABL Facility.




          “ABL Availability Deficit” shall be deemed to exist at any time when the ABL Availability at
such time is less than the ABL Availability Threshold at such time; provided, however, that an ABL
Availability Deficit shall be deemed not to exist at any time the Revolving Credit Agreement, or
any replacement credit agreement in respect of the Permitted ABL Facility, shall not contain a
limitation on prepayments of Loans under Section 2.13(b) based on the “Availability” thereunder.




          “ABL Availability Threshold” shall mean, at any time, an amount equal to the lesser of (a)
10.0% of the aggregate principal amount of the revolving commitments under the Permitted ABL
Facility in effect at such time and (b) $53,500,000; provided, however, that, at any time the
Revolving Credit Agreement, or any replacement credit agreement in respect of the Permitted ABL
Facility, shall not contain a limitation on prepayments of Loans under Section 2.13(b) based on the
“Availability” thereunder, the ABL Availability Threshold at such time shall be zero.




          “ABL Event of Default” shall mean (a) an “Event of Default” under, and as defined in, the
Revolving Credit Agreement, or any replacement credit agreement in respect of the Permitted ABL
Facility, or (b) a “Default” under, and as defined in, the Revolving Credit Agreement, or any
replacement credit agreement in respect of the Permitted ABL Facility, in respect of (i) failure by
the Borrower to deliver its financial statements as required under the terms thereof or (ii) an
involuntary bankruptcy proceeding commenced in respect of the Borrower, in each case, except where
such Event of Default or such Default shall have been waived pursuant to the Revolving Credit
Agreement or any replacement credit agreement in respect of the Permitted ABL Facility, as the case
may be, or the event, circumstance or occurrence giving rise thereto shall have been cured or
remedied.




          “ABL Priority Collateral” shall have the meaning assigned to such term in the Intercreditor
Agreement.




          “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.




 









 






3


          “Acquired Company” shall have the meaning assigned to such term in the recitals.




          “Acquisition” shall have the meaning assigned to such term in the recitals.




          “Acquisition Consideration” shall have the meaning assigned to such term in the recitals.




          “Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum equal to the product of (a) the LIBO Rate in effect for such
Interest Period and (b) Statutory Reserves.




          “Administrative Agent” shall mean Credit Suisse, Cayman Islands Branch, in its capacity as
administrative agent for the Lenders hereunder, and its successors in such capacity as provided in
Article VIII.




          “Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05(b).




          “Administrative Questionnaire” shall mean an Administrative Questionnaire in the form supplied
by the Administrative Agent.




          “Affiliate” shall mean, when used with respect to a specified person, another person that
directly or indirectly Controls or is Controlled by or is under common Control with the person
specified; provided, however, that for purposes of Section 6.09, the term “Affiliate” shall also
mean any person that is an executive officer or director of the person specified, any person that
directly or indirectly beneficially owns Equity Interests in the person specified representing 5%
or more of the aggregate ordinary voting power or the aggregate equity value represented by the
issued and outstanding Equity Interests in the person specified and any person that would be an
Affiliate of any such beneficial owner pursuant to this definition (but without giving effect to
this proviso).




          “Agents” shall have the meaning assigned to such term in Article VIII.




          “Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. If the Administrative Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective
Rate for any reason, including the inability or failure of the Administrative Agent, in each case
after its commercially reasonable efforts, to obtain sufficient quotations in accordance with the
terms of the definition thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the preceding sentence until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.




 









 






4


          “Annual Compensation Incentive Amount” shall have the meaning assigned to such term in
Section 6.08(a).




          “Applicable Margin” shall mean, for any day (a) with respect to any Eurodollar Loan, 7.50% per
annum or (b) with respect to any ABR Loan, 6.50% per annum.




          “Approved Fund” shall mean any person (other than a natural person) that is engaged in making,
purchasing, holding or investing in commercial loans and similar extensions of credit in the
ordinary course and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender
or (c) an entity or an Affiliate of an entity that administers or manages a Lender.




          “Arranger” shall mean Credit Suisse Securities (USA) LLC, in its capacity as the sole
bookrunner and sole lead arranger for the credit facilities provided for herein.




          “Asset Sales Collateral Account” shall have the meaning assigned to such term in
Section 2.13(a).




          “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender
and an Eligible Assignee, with the consent of any person whose consent is required by Section 9.04,
in the form of Exhibit A or such other form as shall be approved by the Administrative Agent.




          “Board of Governors” shall mean the Board of Governors of the Federal Reserve System of the
United States of America.




          “Borrower” shall have the meaning assigned to such term in the preamble hereto. From and
after the effective time of the Merger, all references in this Agreement and the other Loan
Documents to the Borrower shall be deemed to be references to the Acquired Company.




          “Borrowing” shall mean Loans of the same Type made, converted or continued on the same date
and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.




          “Borrowing Request” shall mean a request by the Borrower in accordance with the terms of
Section 2.03 and substantially in the form of Exhibit B or such other form as shall be reasonably
acceptable to the Administrative Agent.




          “Breakage Event” shall have the meaning assigned to such term in Section 2.16.




          “Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in New
York City are authorized or required by law to remain closed; provided, however, that when used in
connection with a Eurodollar Loan, the term




 









 





5


“Business Day” shall also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.




          “Capital Expenditures” shall mean, for any period, (a) the additions to property, plant and
equipment and other capital expenditures of the Borrower and its consolidated subsidiaries that are
(or should be) set forth in a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP, excluding (i) any such expenditures made to restore, replace or
rebuild assets to the condition of such assets immediately prior to any Casualty to or Condemnation
of such assets to the extent such expenditures are made with insurance proceeds or Condemnation
Proceeds received in respect of any such Casualty or Condemnation, (ii) any such expenditures in
the form of a substantially contemporaneous exchange of similar property, plant, equipment or other
capital assets, except to the extent of cash or other consideration (other than the assets so
exchanged), if any, paid or payable by the Borrower or any of its consolidated subsidiaries, and
(iii) any such expenditures in the form of earnout payments under the Earnout Agreement, (b) such
portion of principal payments on Capital Lease Obligations or Synthetic Lease Obligations made by
the Borrower and its consolidated subsidiaries during such period as is attributable to additions
to property, plant and equipment that have not otherwise been reflected in the consolidated
statement of cash flows of the Borrower as additions to property, plant and equipment and (c) costs
incurred with respect to turnarounds, catalysts, licensing, imaging and other operating costs of
the Borrower and its consolidated subsidiaries that are (or should be) classified as deferred
assets in accordance with GAAP.




          “Capital Lease Obligations” of any person shall mean the obligations of such person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP. For
purposes of Section 6.02, a Capital Lease Obligation shall be deemed to be secured by a Lien on the
property being leased and such property shall be deemed to be owned by the lessee.




          “Cash Available for Debt Service” shall mean, for any period, the Consolidated EBITDA for such
period, minus the sum of (a) Capital Expenditures made by the Borrower and its consolidated
subsidiaries in cash during such period and (b) to the extent added to Consolidated Net Income in
determining Consolidated EBITDA, consolidated income tax cash expense for such period, all
determined on a consolidated basis in accordance with GAAP.




          “Casualty” shall mean any event of damage or casualty relating to all or part of the Krotz
Springs Refinery.




          “Change in Law” shall mean the occurrence, after the Closing Date, of any of the following:
(a) the adoption of any law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or issuance of any





 









 





6


request, guideline or directive (whether or not having the force of law) of any Governmental
Authority.




          “Charges” shall have the meaning assigned to such term in Section 9.09.




          “Closing Date” shall mean the date of this Agreement.




          “Code” shall mean the Internal Revenue Code of 1986.




          “Collateral” shall mean any and all assets, whether real or personal, tangible or intangible,
on which Liens are purported to be granted pursuant to the Security Documents as security for the
Secured Obligations.




          “Collateral Agent” shall mean Credit Suisse, Cayman Islands Branch, in its capacity as
collateral agent for the Secured Parties, and its successors in such capacity as provided in
Article VIII.




          “Colonial Pipeline” shall mean the Colonial Pipeline system operated by the Colonial Pipeline
Company.




          “Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make
Loans hereunder, as set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender assumed its Commitment, as applicable, as the same may be (a) reduced from time
to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04.




          “Commitment Fee” shall have the meaning assigned to such term in Section 2.05(a).




          “Commitment Fee Payment Date” shall have the meaning assigned to such term in Section 2.05(a).




          “Commitment Letter” shall mean the letter agreement dated May 8, 2008, among Parent, the
Borrower, Credit Suisse Securities (USA) LLC and Credit Suisse.




          “Commodity Agreement” shall mean in respect of a person any commodity or raw material futures
contract, commodity or raw materials option or other agreement or arrangement designed to protect
such person against fluctuations in commodity or raw materials prices, other than hydrocarbons or
products refined therefrom.




          “Compliance Certificate” shall mean a Compliance Certificate in the form of Exhibit C or any
other form approved by the Administrative Agent.




          “Condemnation” shall mean any taking, exercise of rights of eminent domain, public
improvement, inverse condemnation, condemnation or similar action of





 









 





7


or proceeding by any
Governmental Authority or any other person relating to all or part of the Krotz Springs Refinery.




          “Condemnation Proceeds” shall have the meaning assigned to such term in Section 10.03.




          “Confidential Information Memorandum” shall mean the Confidential Information Memorandum of
the Borrower dated May 19, 2008.




          “Consolidated Cash Interest Expense” means, for any period, the excess of (a) the sum, without
duplication, of (i) the interest expense (including imputed interest expense in respect of Capital
Lease Obligations) of the Borrower and its consolidated subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP (and, in any event, including any unused line fees
payable during such period in respect of the Permitted ABL Facility), (ii) any interest or other
financing costs becoming payable during such period in respect of Indebtedness of the Borrower and
its consolidated subsidiaries to the extent such costs shall have been capitalized rather than
included in consolidated interest expense for such period in accordance with GAAP (other than the
debt issuance costs incurred on or prior to the Effective Date in connection with entering into
this Agreement and the Revolving Credit Agreement) and (iii) any cash payments made during such
period in respect of obligations referred to in clause (b)(ii) below that were amortized or accrued
in a previous period, minus (b) without duplication and to the extent included in such consolidated
interest expense for such period, the sum of (i) noncash amounts attributable to amortization or
write-off of capitalized interest or other financing costs paid in a previous period and (ii)
noncash amounts attributable to amortization of debt discounts or accrued interest payable in kind
for such period.




          “Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period,
plus (a) without duplication and to the extent deducted in determining such Consolidated Net
Income, the sum of (i) consolidated interest expense for such period (including imputed interest
expense in respect of Capital Lease Obligations), determined on a consolidated basis in accordance
with GAAP, (ii) consolidated income tax expense for such period, (iii) all amounts attributable to
depreciation and amortization for such period (excluding amortization expense attributable to a
prepaid cash item that was paid in a prior period), (iv) the Transaction Costs, (v) any
non-recurring loss to the extent the Borrower or any of its consolidated subsidiaries has received
during such period in cash an indemnification payment in respect of such loss pursuant to the
indemnification provisions of the Stock Purchase Agreement, (vi) the earnout payments made during
such period pursuant to the Earnout Agreement and (vii) any noncash charges for such period
(excluding any bad debt expense and any noncash charge to the extent it represents an accrual of or
a reserve for cash expenditures in any future period); provided that any cash payment made with
respect to any noncash items added back in computing Consolidated EBITDA for any
prior period pursuant to this clause (a) shall be subtracted in computing Consolidated EBITDA
for the period in which such cash payment is made; plus (b) without duplication and to the extent
not included in determining such Consolidated Net Income, all cash





 









 






8

proceeds of business
interruption insurance received by the Borrower or any of its consolidated subsidiaries during such
period; and minus (c) without duplication and to the extent included in determining such
Consolidated Net Income, (i) any extraordinary gains for such period and (ii) noncash items of
income for such period (excluding any noncash items of income (A) in respect of which cash was
received in a prior period or will be received in a future period or (B) that represents the
reversal of any accrual for, or cash reserves for, anticipated cash charges in any prior period),
all determined on a consolidated basis in accordance with GAAP; provided that Consolidated EBITDA
for any period shall be calculated to exclude, to the extent otherwise reflected in Consolidated
Net Income for such period, any unrealized non-cash gain or loss for such period in respect of
Hedging Agreements resulting form the application of the Statement of Financial Accounting
Standards No. 133, “Accounting for Derivative Instruments and Hedging Activities”, or a successor
thereto, and the related tax effects. Notwithstanding anything to the contrary contained herein,
Consolidated EBITDA shall be deemed to be $41,700,000, $41,700,000 and $41,700,000 for the fiscal
quarters ended June 30, 2008, March 31, 2008 and December 31, 2007, respectively. For purposes of
calculating Consolidated EBITDA for any period, if during such period the Borrower or any of its
consolidated subsidiaries shall have consummated a Material Acquisition, Consolidated EBITDA for
such period shall be calculated after giving pro forma effect thereto in accordance with Section
1.03(b).




          “Consolidated Net Income” shall mean, for any period, the net income or loss of the Borrower
and its consolidated subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP; provided that there shall be excluded (a) the income of any person (other than the
Borrower) that is not a consolidated subsidiary of the Borrower, except to the extent of the amount
of cash dividends or similar cash distributions actually paid by such person to the Borrower or,
subject to clauses (b) and (c) below, any consolidated subsidiary of the Borrower during such
period, (b) the income of, and any amounts referred to in clause (a) above paid to, any
consolidated subsidiary of the Borrower to the extent that the declaration or payment of cash
dividends or similar cash distributions by such subsidiary is not, on the date of determination,
permitted without any prior approval of any Governmental Authority that has not been obtained or by
the operation of the terms of the organizational documents of such subsidiary, any agreement or
other instrument binding upon such subsidiary or any law applicable to such subsidiary, unless such
restrictions with respect to the payment of cash dividends and other similar cash distributions
have been legally and effectively waived, and (c) the income of, and any amounts referred to in
clause (a) above paid to, any consolidated subsidiary of the Borrower that is not wholly owned by
the Borrower, to the extent such income or amounts are attributable to the noncontrolling interest
in such subsidiary.




          “Contingent Obligations” shall have the meaning assigned to such term in the Guarantee and
Collateral Agreement.




          “Control” shall mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies, or the dismissal or appointment of the management, of
a person, whether through the ownership of voting





 









 






9

securities, by contract or otherwise. The terms
“Controlling” and “Controlled” shall have meanings correlative thereto.




          “Control Agreement” shall mean, with respect to any deposit account or securities account
maintained by any Loan Party, a control agreement in form and substance reasonably satisfactory to
the Administrative Agent and the Collateral Agent, duly executed and delivered by such Loan Party
and the depositary bank or the securities intermediary, as the case may be, with which such account
is maintained.




          “Crack Spread Hedging Agreement” shall mean the agreement dated as of July 3, 2008, between
Credit Suisse Energy LLC and the Borrower, together with the schedules and exhibits thereto.




          “Crack Spread Hedging Cash Collateral” shall mean not more than $50,000,000 in cash deposited
by the Borrower with, or for the benefit of, (a) the Crack Spread Hedging Counterparty as support
for the Borrower’s obligations under the Crack Spread Hedging Agreement or (b) the issuer of the
Crack Spread Hedging Support LC as support for the Borrower’s obligations under the Crack Spread
Hedging Support LC as the account party thereunder.




          “Crack Spread Hedging Counterparty” shall mean Credit Suisse Energy LLC, or any successor or
assignee thereof that becomes a party to the Crack Spread Hedging Agreement.




          “Crack Spread Hedging Support LC” shall mean a letter of credit in a face amount of not more
than $50,000,000 issued for the benefit of the Crack Spread Hedging Counterparty as support for the
Borrower’s obligations under the Crack Spread Hedging Agreement.




          “Currency Agreement” shall mean in respect of a person any foreign exchange contract, currency
swap agreement or other similar agreement designed to protect such person against fluctuations in
currency values.




          “Debt Service Payments” shall mean, for any period, the sum, without duplication, of
(a) Consolidated Cash Interest Expense for such period and (b) the aggregate amount of scheduled
principal payments made during such period in respect of Long-Term Indebtedness of the Borrower and
its subsidiaries (other than payments made to the Borrower or any of its subsidiaries).




          “Debt Service Reserve Account” shall mean a debt service reserve cash collateral account over
which the Administrative Agent shall have sole control and exclusive rights of withdrawal.




          “Debt Service Reserve Account Requirement” shall mean the requirement that the aggregate
amount deposited by the Borrower into the Debt Service Reserve Account pursuant to Section 2.23(a)
shall be at least $16,000,000.




 









 





10



          “Debt Service Reserve Deficit” shall be deemed to exist at any time when the sum of (a) the
aggregate amount on deposit in the Debt Service Reserve Account at such time and (b) the aggregate
amount available to be drawn under any Debt Service Support LC in effect at such time shall be less
than $16,000,000.




          “Debt Service Support LC” shall mean an irrevocable standby letter of credit issued, on
account of the Borrower, in favor of the Administrative Agent, in form and substance (including as
to the expiration and automatic renewal, if any, thereof) reasonably satisfactory to the
Administrative Agent; provided that such letter of credit is not issued under, and is not otherwise
outstanding under, the Permitted ABL Facility. At the time of the issuance of a Debt Service
Support LC, the issuer thereof shall be a bank the senior long-term indebtedness for borrowed money
that is unsecured, not guaranteed and not subject to any other credit enhancement of which is rated
at least “A” (or the equivalent) by S&P and at least “A2” (or the equivalent) by Moody’s (or
another bank acceptable to the Administrative Agent).




          “Debt Service Support LC Amount” shall mean (a) in respect of the Debt Service Support LC
referred to in Section 2.24(a), the aggregate amount of funds on deposit in the Debt Service
Reserve Account at the time of the transfer of such funds pursuant to Section 2.24(a) and (b) in
respect of any replacement letter of credit referred to in Section 2.24(b) or 2.24(c), the undrawn
amount of the Debt Service Support LC in respect of which such replacement letter of credit is
issued.




          “Debt Service Support LC Cash Collateral” shall mean cash deposited by the Borrower with, or
for the benefit of, the issuer of any Debt Service Support LC as support for the Borrower’s
obligations under such Debt Service Support LC as the account party thereunder.




          “Deferred Excess Cash Flow” shall have the meaning assigned to such term in Section 2.13(b).




          “Default” shall mean any event or condition that constitutes, or upon notice, lapse of time or
both would constitute, an Event of Default.




          “Disqualified Equity Interest” shall mean, with respect to Holdings, any Equity Interest in
Holdings that by its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the
happening of any event or condition:





     (a) matures or is required to be redeemed or repurchased, in whole or in part, by
Holdings or any Subsidiary;




     (b) is convertible or exchangeable at the option of the holder thereof for
Indebtedness or Equity Interests of Holdings or any Subsidiary (other than solely for
Equity Interests in Holdings that do not constitute Disqualified Equity Interests); or



 









 




11


     (c) is redeemable (other than solely for Equity Interests in Holdings that do not
constitute Disqualified Equity Interests) or is required to be repurchased by Holdings
or any Subsidiary, in whole or in part, at the option of the holder thereof:


in each case, on or prior to the date 180 days after the Maturity Date.




          “dollars” or “$” shall mean lawful money of the United States of America.




          “Domestic Subsidiary” shall mean any Subsidiary incorporated or organized under the laws of
the United States of America, any State thereof or the District of Columbia.




          “Earnout Agreement” shall mean the Earnout Agreement to be entered into on the Effective Date
by and between the Borrower and the Seller pursuant to the Stock Purchase Agreement.




          “Effective Date” shall mean the date on which the Acquisition is consummated.




          “Eligible Assignee” shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved
Fund and (d) any other person, other than, in each case, a natural person or Holdings, the
Borrower, Parent or any other Affiliate of Holdings or Parent.




          “Environmental Laws” shall mean all former, current and future federal, state, local and
foreign laws (including common law), treaties, regulations, rules, ordinances, codes, decrees,
judgments, directives, orders (including consent orders), and agreements, in each case, applicable
to Holdings or any Subsidiary and relating to protection of the environment, natural resources,
human health and safety or the presence, Release of, or exposure to, Hazardous Materials, or the
generation, manufacture, processing, distribution, use, treatment, storage, transport, recycling or
handling of, or the arrangement for such activities with respect to, Hazardous Materials.




          “Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims,
actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including
administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of or relating to (a) compliance or noncompliance with any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the Release of any Hazardous Materials or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.




          “Equity Interests” shall mean shares of capital stock, partnership interests, membership
interests, beneficial interests or other ownership interests, whether voting or nonvoting, in, or
interests in the income or profits of, a person, and any warrants, options or other rights
entitling the holder thereof to purchase or acquire any of the foregoing.





 









 






12


          “ERISA” shall mean the Employee Retirement Income Security Act of 1974.




          “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with Holdings, is treated as a single employer under Section 414(b) or 414(c) of the Code,
or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.




          “ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) any failure by any Plan to satisfy the minimum funding standard (as
defined in Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not
waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an
application for a waiver of the minimum funding standard with respect to any Plan; (d) the
incurrence by Holdings or any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan or the withdrawal or partial withdrawal of Holdings or any
of its ERISA Affiliates from any Plan or Multiemployer Plan; (e) the receipt by Holdings or any of
its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention
to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) a determination
that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of
ERISA or Section 430(i)(4) of the Code); (g) the receipt by Holdings or any of its ERISA Affiliates
of any notice, or the receipt from any Multiemployer Plan by the Borrower or any of its ERISA
Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning
of Title IV of ERISA or in endangered or critical status, within the meaning of Section 305 of
ERISA; (h) the occurrence of a “prohibited transaction” with respect to which Holdings or any
Subsidiary is a “disqualified person” (within the meaning of Section 4975 of the Code) or with
respect to which Holdings or any such Subsidiary could otherwise be liable; or (i) any other event
or condition with respect to a Plan or Multiemployer Plan that could reasonably be expected to
result in liability of Holdings or any Subsidiary.




          “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.




          “Event of Default” shall have the meaning assigned to such term in Article VII.




          “Excess Cash Flow” shall mean, for any Sweep Period, an amount equal to the amount by which
(a) Net Cash Provided by Operating Activities for such Sweep Period exceeds (b) the sum, without
duplication, of (i) Capital Expenditures made by the Borrower and its consolidated subsidiaries in
cash during such Sweep Period (other than any such expenditures made (A) pursuant to the
reinvestment provisions of Section 2.13(a) or (B) in reliance on the second proviso to
Section 6.15), (ii) the





 









 





13


aggregate amount of cash consideration paid during such Sweep Period by the
Borrower and its consolidated subsidiaries to make acquisitions or capital investments permitted
hereunder (other than any acquisition or capital investments made in reliance on Section 6.04(m)),
(iii) to the extent not deducted in determining Net Cash Provided by Operating Activities for such
Sweep Period, the earnout payments made by the Borrower during such Sweep Period pursuant to the
Earnout Agreement and (iv) the aggregate principal amount of (A) Loans repaid by the Borrower
during such Sweep Period, excluding prepayments of Loans under Sections 2.12 and 2.13, and (B)
Long-Term Indebtedness repaid or prepaid by the Borrower under the Permitted ABL Facility to the
extent such repayment or prepayment (1) is accompanied by a corresponding permanent reduction in
the commitments thereunder or (2) is required pursuant to the Revolving Credit Agreement, or the
replacement credit agreement in respect of the Permitted ABL Facility, on account of the aggregate
principal amount of Indebtedness thereunder exceeding the aggregate borrowing base thereunder).
For the avoidance of doubt, the parties hereto acknowledge that no prepayment under Section 2.13(b)
shall be required to be made on account of “Excess Cash Flow” for any period prior to January 1,
2009, and the Borrower agrees to apply, on or prior to December 31, 2008, such “Excess Cash Flow”
to prepay loans under the Permitted ABL Facility made on the Effective Date, the amount of such
prepayment to equal to the lesser of (x) the amount of “Excess Cash Flow” (determined consistent
with this definition) for the period from the Effective Date to December 31, 2008, (y) the
aggregate principal amount of loans under the Permitted ABL Facility made on the Effective Date and
(z) $125,000,000.




          “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder
or under any other Loan Document, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America or any State or political subdivision thereof, or by the
jurisdiction under the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending office is located, (b)
any branch profits taxes imposed by the United States of America or any similar tax imposed by any
other jurisdiction described in clause (a) above and (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Borrower under Section 2.21(a)), any withholding tax
that is imposed by the United States of America on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new lending office),
except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.20(a), or that is attributable to such Foreign Lender’s failure to comply
with Section 2.20(e).




          “Existing Parent Term Credit Agreement” means the Credit Agreement dated as of June 22, 2006,
as amended, among Parent, the lenders party thereto and Credit Suisse, as administrative agent.




          “ExxonMobil Pipeline Consents” shall mean consents by the counterparties to the ExxonMobil
Pipeline Supply Contracts to the security interest of the





 









 





14


Collateral Agent in the rights of the
Acquired Company thereunder and the right of the Collateral Agent to enforce such rights of the
Acquired Company thereunder upon the exercise of its rights as a secured party.




          “ExxonMobil Pipeline Supply Contract” shall mean any agreement pursuant to which Holdings or
any Subsidiary obtains crude oil through any ExxonMobil Pipeline, and any agreement relating
thereto, other than any tariff rules and regulations and similar agreements of general application
from time to time published by ExxonMobil Pipeline Company.




          “ExxonMobil Pipelines” shall mean the pipeline systems known as (a) the “Southbend/Sunset
System” and (b) the “Northline System”, each operated by ExxonMobil Pipeline Company.




          “Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for the day for such
transactions received by the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.




          “Fee Letter” shall mean the Fee Letter dated May 8, 2008, among Parent, the Borrower, Credit
Suisse Securities (USA) LLC and Credit Suisse.




          “Fees” shall mean the Commitment Fees and the Administrative Agent Fees.




          “Financial Officer” of any person shall mean the chief financial officer, principal accounting
officer, treasurer or controller of such person.




          “Foreign Lender” shall mean any Lender that is organized under the laws of, or the applicable
lending office of which is located in, a jurisdiction other than the United States of America
(including each State thereof and the District of Columbia).




          “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.




          “GAAP” shall mean generally accepted accounting principles in the United States of America,
applied in accordance with the consistency requirements thereof.




          “Governmental Approvals” shall mean all authorizations, consents, approvals, permits,
licenses, certificates, declarations, orders and exemptions of, registrations, filings or
recordings with, and reports to, Governmental Authorities.





 












 





 15




          “Governmental Authority” shall mean the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national body exercising such function, such as the European Union
or the European Central Bank).



          “Granting Lender” shall have the meaning assigned to such term in Section 9.04(h).



          “Guarantee” of or by any person shall mean any obligation, contingent or otherwise, of such
person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of such person, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any security for the payment of
such Indebtedness or other obligation, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided,
however, that the term “Guarantee” shall not include endorsements for collection or deposit in the
ordinary course of business.



          “Guarantee and Collateral Agreement” shall mean a Guarantee and Collateral Agreement among
Holdings, the Borrower, the other Loan Parties and the Collateral Agent, substantially in the form
of Exhibit D, together with all supplements thereto.



          “Guarantee and Collateral Requirement” shall mean, at any time, the requirement that:




     (a) the Collateral Agent shall have received from Holdings and each Subsidiary either
(i) a counterpart of the Guarantee and Collateral Agreement and the Intercreditor
Acknowledgement, duly executed and delivered on behalf of such person, or (ii) in the case
of any person that becomes a Subsidiary after the Effective Date, a supplement or joinder
to each such agreement, in the form specified therein, duly executed and delivered on
behalf of such person;




     (b) all Equity Interests owned by or on behalf of Holdings and any Subsidiary shall
have been pledged pursuant to the Guarantee and Collateral Agreement, and the Collateral
Agent shall have received the certificates or other instruments representing such Equity
Interests, together with undated stock powers or other instruments of transfer with respect
thereto endorsed in blank;









 



16



     (c) (i) all Indebtedness of Holdings, any Subsidiary or any other Affiliate of
Holdings and (ii) all Indebtedness of any other person in a principal amount of $250,000 or
more that, in each case, is owing to Holdings or any Subsidiary shall be evidenced by a
promissory note and shall have been pledged pursuant to the Guarantee and Collateral
Agreement, and the Collateral Agent shall have received all such promissory notes, together
with undated instruments of transfer with respect thereto endorsed in blank;




     (d) all documents and instruments, including all Uniform Commercial Code financing
statements, required by applicable law or reasonably requested by the Administrative Agent
or the Collateral Agent to be filed, registered or recorded to create or perfect the Liens
intended to be created by the Security Documents, with the priority required thereby, shall
have been filed, registered or recorded or delivered to the Collateral Agent for filing,
registration or recording;




     (e) (i) the Collateral Agent shall have received a counterpart of a Mortgage with
respect to each Mortgaged Property, duly executed and delivered by the record owner or
lessee, as the case may be, of such Mortgaged Property, (ii) the Mortgage with respect to
each Mortgaged Property shall have been filed and recorded in the appropriate recording
office and the Collateral Agent shall have received evidence reasonably satisfactory to it
of each such filing and recordation, (iii) the Collateral Agent shall have received a
policy of title insurance issued by a nationally recognized title insurance company
insuring the Lien of each such Mortgage as a valid first lien on the Mortgaged Property
described therein, which policy shall be in form and substance (including in respect of
exceptions set forth therein as to the priority of such Lien) reasonably acceptable to the
Collateral Agent, together with such endorsements and reinsurance as shall have been
reasonably requested by the Collateral Agent, and (iv) the Collateral Agent shall have
received all existing surveys, abstracts, appraisals, all legal opinions and such other
documents as are required to be furnished pursuant to the terms of the Mortgages or
reasonably requested by the Collateral Agent;




     (f) with respect to each deposit account (other than any deposit account the funds in
which are used, in the ordinary course of business, solely for the payment of salaries and
wages, workers’ compensation and similar expenses) and each securities account maintained
by Holdings or any Subsidiary with any depositary bank or securities intermediary, the
Collateral Agent shall have received a counterpart, duly executed and delivered by Holdings
or such Subsidiary, as applicable, and such depositary bank or securities intermediary, as
the case may be, of a Control Agreement; and




     (g) each Loan Party shall have obtained all consents and approvals required to be
obtained by it in connection with the execution and delivery of all Security Documents to
which it is a party, the performance of its obligations thereunder and the granting by it
of the Liens thereunder.









 



17

The foregoing definition shall not require the creation or perfection of pledges of or security
interests in, or the obtaining of title insurance or other deliverables with respect to, particular
assets (including any Non-Fee Mortgaged Property) if, and for so long as, in the judgment of the
Collateral Agent the burden of creating or perfecting such pledges or security interests in such
assets (including, as to any Non-Fee Mortgaged Property containing a restriction on the creation of
a mortgage or other Lien thereon, the burden (including any incremental costs associated therewith)
of obtaining the consent or approval of lessors or grantors, as applicable, with respect thereto)
or obtaining such title insurance or other deliverables shall be excessive in view of the benefits
to be obtained by the Lenders therefrom. The Collateral Agent may grant extensions of time for the
creation and perfection of security interests in or the obtaining of title insurance or other
deliverables with respect to particular assets (including extensions beyond the Effective Date for
the perfection of security interests in the assets of Holdings and the Subsidiaries acquired on
such date) where it determines that such action cannot be accomplished without undue effort or
expense by the time or times at which it would otherwise be required to be accomplished by this
Agreement or the Security Documents. Without limiting the foregoing, with respect to any Non-Fee
Mortgaged Property containing a prohibition on, or requiring the consent of the lessor or grantor
thereunder to, the creation of a mortgage thereon, if Holdings and the Subsidiaries shall have used
commercially reasonable efforts to eliminate such prohibition or to obtain such consent, in each
case, in respect of the mortgage required under clause (e) above, but shall nevertheless have been
unable to effect such elimination or to obtain such consent, then no Default or Event of Default
shall result as a result of Holdings or any Subsidiary not satisfying the requirements of clause
(e) above as to such Non-Fee Mortgaged Property (it being agreed that Holdings and the Borrower
shall take such further commercially reasonable efforts as the Collateral Agent may, at any time or
from time to time, reasonably request in furtherance of effecting such elimination or obtaining
such consent). It is agreed that, notwithstanding anything herein to the contrary, (i) the
interest of the Crack Spread Hedging Counterparty or the issuer of the Crack Spread Hedging Support
LC, as the case may be, in the Crack Spread Hedging Cash Collateral and (ii) the interest of the
issuer of any Debt Service Support LC in the Debt Service Support LC Cash Collateral shall be
senior in all respects and prior to the Lien of the Collateral Agent thereon, and each Lender
hereby consents to the foregoing and authorizes and directs the Collateral Agent to execute and
deliver one or more acknowledgements or agreements, in form and substance satisfactory to the
Collateral Agent, in connection with the agreements set forth in this sentence.




          “Hazardous Materials” shall mean (a) any petroleum products or byproducts and all other
hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, chlorofluorocarbons and all other ozone-depleting substances and (b) any chemical,
material, substance or waste that is prohibited, limited or regulated by or pursuant to any
Environmental Law.



          “Hedging Agreement” shall mean any Interest Rate Agreement, Currency Agreement, Hydrocarbon
Agreement or Commodity Agreement.









 



18


          “Holdings” shall have the meaning assigned to such term in the preamble hereto.



          “Holdings Contribution” shall mean the transfer by Parent or one or more of its Affiliates
(other than Holdings and the Subsidiaries) to Holdings of cash in an amount not less than
$100,000,000, in the form of a contribution to the common or preferred equity of Holdings.



          “Holdings Subordinated Loans” shall mean one or more loans extended by Parent or one or more
of its Affiliates (other than Holdings and the Subsidiaries) to Holdings; provided that (a) no such
loan (i) shall be Guaranteed by any Subsidiary, (ii) shall be secured by any Lien on any asset of
Holdings or any Subsidiary or (iii) shall require any payment or other distribution, whether on one
or more fixed dates, upon the occurrence of one or more events or otherwise, of principal or cash
interest prior to the indefeasible payment in full in cash of all Secured Obligations (other than
Contingent Obligations) has occurred, except for any payments expressly permitted under
Section 6.08(b)(iv), and (b) the obligee thereunder shall have entered into a Holdings
Subordination Agreement with respect thereto.



          “Holdings Subordination Agreement” shall mean an agreement among Holdings, the Collateral
Agent and one or more persons that shall have made Holdings Subordinated Loans, substantially in
the form of Exhibit E.



          “Hydrocarbon Agreement” shall mean in respect of a person any purchase or hedging agreement in
respect of hydrocarbons or products refined therefrom, future contract or option or other agreement
or arrangement, in each case, designed to protect such person against fluctuations in the price of
hydrocarbons or products refined therefrom.



          “Inactive Subsidiary” shall mean any Subsidiary (a) that does not conduct any business
operations, (b) has assets with a book value of $100,000 or less and (c) does not have any
Indebtedness outstanding.



          “IDB Agreement” shall mean the Amended Revolving Credit Agreement dated as of February 15,
2006, as amended, among Alon USA, LP, Parent, the subsidiaries of Parent party thereto, the lenders
party thereto and Israel Discount Bank of New York, as agent.



          “IDB Consents” shall mean such amendments, consents or waivers under the IDB Agreement as may
be required to permit thereunder the consummation of the Transactions.



          “Indebtedness” of any person shall mean, without duplication, (a) all obligations of such
person for borrowed money or with respect to deposits or advances by other persons of any kind,
(b) all monetary obligations of such person evidenced by bonds, debentures, notes or similar
instruments, (c) all monetary obligations of such person under conditional sale or other title
retention agreements relating to property acquired by such person (excluding trade accounts payable
incurred in the ordinary









 



19



course of business), (d) all monetary obligations of such person in respect of the deferred
purchase price of property or services (excluding (i) current accounts payable incurred in the
ordinary course of business, (ii) deferred compensation, (iii) any purchase price adjustment under
the Stock Purchase Agreement and (iv) any earnout payment under the Earnout Agreement), (e) all
Capital Lease Obligations and Synthetic Lease Obligations of such person, (f) all obligations,
contingent or otherwise, of such person as an account party in respect of letters of credit and
letters of guaranty, (g) all obligations, contingent or otherwise, of such person in respect of
bankers’ acceptances, (h) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such person, whether or not the Indebtedness secured thereby has been assumed,
and (i) all Guarantees by such person of Indebtedness of others. The Indebtedness of any person
shall include the Indebtedness of any other person (including any partnership in which such person
is a general partner) to the extent such person is liable therefor as a result of such person’s
ownership interest in or other relationship with such other person, except to the extent the terms
of such Indebtedness provide that such person is not liable therefor. For the avoidance of doubt,
the term “Indebtedness” shall not include any obligation of the Borrower or any of its subsidiaries
(including any obligation under the Crack Spread Hedging Agreement or any other Hedging Agreement)
solely as a result of such obligation being reflected as a liability on the consolidated balance
sheet of the Borrower prepared in accordance with GAAP, except to the extent such obligation is of
the type set forth in clauses (a) through (i) above.



          “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.



          “Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).



          “Information” shall have the meaning assigned to such term in Section 9.16.



          “Intercreditor Acknowledgement” shall mean a Consent and Acknowledgement dated as of the date
hereof, executed by Holdings and the Borrower, as such Consent and Acknowledgement may be
supplemented from time to time.



          “Intercreditor Agreement” shall mean an intercreditor agreement between the Collateral Agent
and the Revolving Collateral Agent, substantially in the form of Exhibit F, with such modifications
thereto as (a) may be agreed to (i) by the Administrative Agent, if in the judgment of the
Administrative Agent such modifications would not be adverse to the interests of the Lenders in any
material respect, or (ii) the Required Lenders or (b) are expressly authorized under Section 9.18.



          “Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business Day of
each March, June, September and December and (b) with respect to any Eurodollar Loan, the last day
of each Interest Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day
that would have been an Interest









 



20



Payment Date had successive Interest Periods of three months’ duration been applicable to such
Borrowing, and, in addition, the date of any prepayment of a Eurodollar Borrowing or conversion of
a Eurodollar Borrowing to an ABR Borrowing.



          “Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect; provided, however, that if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but excluding the last day
of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date
on which such Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.



          “Interest Rate Agreement” shall mean in respect of a person any interest rate swap agreement,
interest rate cap agreement or other financial agreement or arrangement designed to protect such
person against fluctuations in interest rates.



          “Investment” shall mean, with respect to a specified person, any Equity Interests, evidences
of Indebtedness or other securities (including any option, warrant or other right to acquire any of
the foregoing) of, or any capital contribution or loans or advances (other than advances to
customers in the ordinary course of business that would be recorded as accounts receivable on the
balance sheet of the lender prepared in accordance with GAAP) to, Guarantees of any Indebtedness or
other obligations of, or any other investment in, any other person that are held or made by the
specified person. The amount, as of any date of determination, of (a) any Investment in the form
of a loan or an advance shall be the principal amount thereof outstanding on such date, (b) any
Investment in the form of a Guarantee shall be the principal amount outstanding on such date of
Indebtedness or other obligation being guaranteed thereby (or, in the case of a Guarantee of an
obligation that does not have a principal amount, the maximum monetary exposure as of such date of
the guarantor under such Guarantee (as determined reasonably and in good faith by a Financial
Officer of Holdings and the Borrower)), and (c) any other Investment, including any capital
contribution, shall be its fair value (as determined reasonably and in good faith by a Financial
Officer of Holdings and the Borrower) at the time made, without giving effect to any subsequent
changes in value of, or write-ups, write-downs or write-offs with respect to, such Investment.



          “IP Security Agreements” shall have the meaning assigned to such term in the Guarantee and
Collateral Agreement.



          “Krotz Springs Refinery” shall have the meaning assigned to such term in the recitals.









 



21


          “Krotz Springs Refining Business” shall have the meaning assigned to such term in the notes to
the audited financial statements referred to in Section 3.05(a).



          “Lenders” shall mean (a) the persons listed on Schedule 2.01 and (b) any other person that has
become a party hereto pursuant to an Assignment and Acceptance (other than any such person that has
ceased to be a party hereto pursuant to an Assignment and Acceptance).



          “Leverage Ratio” shall mean, on any date, the ratio of (a) Total Indebtedness less the amount
of the Crack Spread Hedging Cash Collateral as of such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters of the Borrower most recently ended on or prior to such
date.



          “LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the
rate of interest per annum determined by the Administrative Agent at approximately 11:00 a.m.,
London time, on the date that is two Business Days prior to the commencement of such Interest
Period by reference to the British Bankers’ Association Interest Settlement Rates for deposits in
dollars (as set forth by any service selected by the Administrative Agent which has been nominated
by the British Bankers’ Association as an authorized information vendor for the purpose of
displaying such rates) for a period equal to such Interest Period; provided that, to the extent
that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition,
the “LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent to be
the average of the rates per annum at which deposits in dollars are offered for a period equal to
such Interest Period to major banks in the London interbank market in London, England by the
Administrative Agent at approximately 11:00 a.m., London time, on the date that is two Business
Days prior to the beginning of such Interest Period.



          “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, charge or security interest in, on or of such asset, including any agreement to
provide any of the foregoing and any arrangement entered into for the purpose of making particular
assets available to satisfy any Indebtedness or other obligation, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or Synthetic Lease or title retention
agreement (or any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.



          “Loan Document Obligations” shall have the meaning assigned to such term in the Guarantee and
Collateral Agreement.



          “Loan Documents” shall mean this Agreement, the promissory notes, if any, executed and
delivered pursuant to Section 2.04(e) (other than for purposes of Section 9.08), the Security
Documents and the Intercreditor Agreement.



          “Loan Parties” shall mean Holdings, the Borrower and each other Subsidiary Loan Party.









 



22


          “Loans” shall mean the loans made by the Lenders to the Borrower pursuant to Section 2.01.



          “Long-Term Indebtedness” shall mean any Indebtedness that, in accordance with GAAP,
constitutes (or, when incurred, constituted) a long-term liability.



          “Margin Stock” shall have the meaning assigned to such term in Regulation U of the Board of
Governors.



          “Material Acquisition” means any Permitted Acquisition or series of related Permitted
Acquisitions; provided that the aggregate consideration therefor (including any Indebtedness
assumed by the acquiror in connection therewith) exceeds $1,000,000.



          “Material Adverse Effect” shall mean an event or condition that has resulted, or could
reasonably be expected to result, in (a) a material adverse effect on the business, assets,
liabilities, results of operations or financial condition of Holdings and the Subsidiaries, taken
as a whole, (b) a material impairment of the ability of the Loan Parties, taken as a whole, to
perform any of their obligations under any Loan Document or (c) a material impairment of the rights
of or benefits available to the Lenders under any Loan Document.



          “Material Casualty or Condemnation” shall mean (a) a Casualty that would cost $167,000,000 or
more to repair or replace (excluding the cost of replacement of crude oil or refined product
inventory) or (b) a Condemnation of assets with an aggregate book value or fair market value of
$167,000,000 or more.



          “Material Indebtedness” shall mean Indebtedness (other than the Loans and Guarantees under the
Loan Documents), or obligations in respect of one or more Hedging Agreements, of any one or more of
Holdings and the Subsidiaries in an aggregate principal amount of $2,500,000 or more. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of Holdings or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that Holdings or such Subsidiary would be required to pay
if such Hedging Agreement were terminated at such time.



          “Maturity Date” shall mean the sixth anniversary of the Closing Date.



          “Maximum Rate” shall have the meaning assigned to such term in Section 9.09.



          “Merger” shall have the meaning assigned to such term in the recitals.



          “Moody’s” shall mean Moody’s Investors Service Inc.



          “Mortgaged Properties” shall mean, at any time, all real properties, including leasehold
interests and pipeline rights of way and easements appurtenant,









 



23



owned or leased by Holdings or any Subsidiary as of such time, other than the real property
interests set forth on Schedule 1.01.



          “Mortgages” shall mean the mortgages, deeds of trust, leasehold mortgages, assignments of
leases and rents, modifications and other security documents granting mortgages or other Liens on
the Mortgaged Properties to secure the Secured Obligations. Each Mortgage shall be reasonably
satisfactory in form and substance to the Administrative Agent and the Collateral Agent.



          “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



          “Net Cash Proceeds” shall mean (a) with respect to any Prepayment Event described in clause
(a) of the definition of such term, the cash proceeds (including cash proceeds subsequently
received (as and when received) in respect of noncash consideration initially received), net of
(i) selling expenses incurred in connection with such Prepayment Event by Holdings and the
Subsidiaries (including reasonable broker’s fees or commissions, legal fees, transfer and similar
taxes and the Borrower’s good faith estimate of income taxes paid or payable on gains realized on
such Prepayment Event), (ii) amounts provided as a reserve, in accordance with GAAP, against any
liabilities under any indemnification obligations or post-closing purchase price adjustments
associated with such Prepayment Event (provided that, to the extent and at the time any such
amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds) and
(iii) the principal amount, premium or penalty, if any, interest and other amounts of or with
respect to any Indebtedness for borrowed money (other than Indebtedness hereunder or under the
Permitted ABL Facility and other than any such Indebtedness assumed by the purchaser or transferee
of such asset) secured by the asset subject to such Prepayment Event that are required to be repaid
with such proceeds; (b) with respect to any Prepayment Event described in clause (b) of the
definition of such term, the amount of the Crack Spread Hedging Cash Collateral released from the
Liens of the Crack Spread Hedging Counterparty or the issuer of the Crack Spread Hedging Support
LC, as the case may be; and (c) with respect to any Prepayment Event described in clause (c) or (d)
of the definition of such term, the cash proceeds of the Indebtedness incurred, the Equity
Interests issued or the capital contribution received, net of all taxes paid and customary fees,
commissions, costs and other expenses incurred in connection therewith by Holdings and the
Subsidiaries.



          “Net Cash Provided by Operating Activities” shall mean, for any period, (a) “Net Cash Provided
by Operating Activities” of the Borrower and its consolidated subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, excluding (i) any Net Cash Proceeds
attributable to Prepayment Events, (ii) insurance proceeds received in respect of any Casualty and
(iii) Condemnation Proceeds received in respect of any Condemnation, plus (b) the sum of, without
duplication and to the extent not included in determining Net Cash Provided by Operating Activities
for such period pursuant to clause (a) above, (i) the aggregate amount of all cash proceeds
received by the Borrower or any of its consolidated subsidiaries during such period pursuant to the
Crack Spread Hedging Agreement or any other Hedging Agreement and









 



24

(ii) the aggregate amount of all cash proceeds received by the Borrower or any of its
consolidated subsidiaries during such period pursuant to the indemnification or purchase price
adjustment provisions of the Stock Purchase Agreement.




          “Non-ABL Priority Collateral” shall have the meaning assigned to such term in the
Intercreditor Agreement.



          “Non-Fee Mortgaged Property” shall mean leasehold interests in real property, pipeline rights
of way and easements.



          “Offtake Agreement” shall mean the Offtake Agreement to be entered into on the Effective Date
by and among the Borrower, the Acquired Company and Valero Marketing and Supply Company pursuant to
the Stock Purchase Agreement.



          “Other Taxes” shall mean any and all present or future stamp or documentary taxes or any
excise or property taxes, charges or similar levies arising from the execution, delivery or
enforcement of, from any payment made under, or otherwise with respect to, any Loan Document.



          “Parent” shall mean Alon USA Energy, Inc., a corporation organized under the laws of the State
of Delaware.



          A “Parent Change of Control” shall be deemed to have occurred if:




     (a) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934), other than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (a) such person shall be deemed to have “beneficial ownership”
of all shares that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or indirectly, of more
than 50% of the total voting power of the Voting Stock of Parent (for the purposes of this
clause (a), such other person shall be deemed to beneficially own any Voting Stock of a
specified person held by a parent entity, if such other person is the beneficial owner (as
defined in this clause (a)), directly or indirectly, of more than 50% of the voting power
of the Voting Stock of such parent entity or has the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of the board of
directors of such parent entity);




     (b) individuals who on the Closing Date constituted the Board of Directors of Parent
(together with any new directors whose election by the Board of Directors of Parent or
whose nomination for election by the stockholders of Parent was approved by a vote of a
majority of the directors of Parent then still in office who were either directors on the
Closing Date or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of Parent then in office;









 



25



     (c) the adoption of a plan relating to the liquidation or dissolution of Parent; or




     (d) the merger or consolidation of Parent with or into another person or the merger of
another person with or into Parent, or the sale of all or substantially all the assets of
Parent (determined on a consolidated basis) to another person (other than, in the case of
any such merger or consolidation, with or into, a person that is controlled by the
Permitted Holders), other than a transaction following which (i) in the case of a merger or
consolidation transaction, (A) holders of securities that represented 100% of the Voting
Stock of Parent immediately prior to such transaction own directly or indirectly at least a
majority of the voting power of the Voting Stock of the surviving person in such merger or
consolidation transaction immediately after such transaction and in substantially the same
proportion to each other as before such transaction or (B) immediately after such
transaction the Permitted Holders beneficially own, directly or indirectly, at least a
majority of the voting power of the Voting Stock of the surviving person in such merger or
consolidation transaction immediately after such transaction and (ii) in the case of a sale
of assets transaction, each transferee either (A) is or becomes a Subsidiary of the
transferor of such assets or (B) is or becomes a person a majority of the total voting
power of the Voting Stock of which is beneficially owned, directly or indirectly, by the
Permitted Holders.



          “Parent Change of Control Put” shall have the meaning assigned to such term in Section
2.22(b).



          “Participants” shall have the meaning assigned to such term in Section 9.04(e).



          “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.



          “Perfection Certificate” shall mean a certificate in the form of Exhibit G or any other form
approved by the Administrative Agent.



          “Permitted ABL Facility” shall have the meaning assigned to such term in Section 6.01(b).



          “Permitted Acquisition” means the purchase or other acquisition by the Borrower or any of its
subsidiaries of Equity Interests in, or all or substantially all the assets of (or all or
substantially all the assets constituting a business unit, division, product line or line of
business of), any person, or assets acquired other than in the ordinary course of business that,
following the acquisition thereof, would constitute a substantial portion of the assets of Holdings
and the Subsidiaries, taken as a whole, in each case, if (a) in the case of any purchase or other
acquisition of Equity Interests in a person, such person (including each subsidiary of such person)
is organized under the laws of the United States of America, any State thereof or the District of
Columbia and, upon the consummation of such acquisition, will be a wholly owned subsidiary of the









 



26



Borrower that is incorporated or organized under the laws of the United States of America, any
State thereof or the District of Columbia (including as a result of a merger or consolidation
between any subsidiary of the Borrower and such person) or (b) in the case of any purchase or other
acquisition of other assets, such assets will be owned by the Borrower or any of its subsidiaries;
provided that (i) such purchase or acquisition was not preceded by, or consummated pursuant to, an
unsolicited tender offer or proxy contest initiated by or on behalf of Holdings or any Subsidiary,
(ii) all transactions related thereto are consummated in accordance with applicable law, (iii) the
business of such person, or such assets, as the case may be, constitute a business permitted by
Section 6.10, (iv) with respect to each such purchase or other acquisition, all actions required to
be taken with respect to such newly created or acquired subsidiary or assets in order to satisfy
the requirements set forth in the definition of the term “Guarantee and Collateral Requirement”
shall have been taken (or arrangements for the taking of such actions satisfactory to the
Administrative Agent and the Collateral Agent shall have been made), (v) at the time of and
immediately after giving effect to any such purchase or other acquisition on a pro forma basis in
accordance with Section 1.03(b), the Borrower shall be in compliance with the covenants set forth
in Sections 6.13 and 6.14, and (vi) each of Holdings and the Borrower shall have delivered to the
Administrative Agent a certificate of a Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all the requirements set forth in this
definition have been satisfied with respect to such purchase or other acquisition, together with
reasonably detailed calculations demonstrating satisfaction of the requirement set forth in clause
(v) above.



          “Permitted Compensation Incentive Equity Interests” shall have the meaning assigned to such
term in Section 6.06(c).



          “Permitted Encumbrances” shall mean:




     (a) Liens imposed by law for Taxes that are not yet due or are being contested in
compliance with Section 5.03;




     (b) landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, consignors’,
repairmen’s and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that (i) are not overdue by more than 30 days, (ii) are being
contested in compliance with Section 5.03 or (iii) for which the applicable statutory
foreclosure period and all other enforcement rights have lapsed;




     (c) pledges or Liens incurred and deposits made in the ordinary course of business in
compliance with workers’ compensation, unemployment insurance and other social security
laws;




     (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds, completion bonds and other
obligations of a like nature, in each case in the ordinary course of business;









 



27



     (e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (j) of Article VII;




     (f) easements, servitudes, reservations, conditions, limitations, covenants, zoning
and land use restrictions, rights-of-way, minor survey exceptions and similar encumbrances
or Liens on or defects or imperfections in the title with respect to real property that, in
each case, do not secure any monetary obligations and, individually or in the aggregate, do
not materially detract from the value of the affected property or the rights or remedies of
the Secured Parties with respect thereto or interfere with the ordinary conduct of business
of Holdings or any Subsidiary, including the operation of the Krotz Springs Refinery;




     (g) Liens listed on any policy of title insurance insuring the Lien of any Mortgage on
any Mortgaged Property as an exception to the priority of the Lien of such Mortgage on such
Mortgaged Property, but only if such title policy meets the requirements set forth in
clause (e) of the definition of the term “Guarantee and Collateral Requirement”;




     (h) banker’s liens, rights of setoff or similar rights and remedies as to deposit
accounts or other funds maintained with depository institutions; provided that such deposit
accounts or funds are not established or deposited for the purpose of providing collateral
for any Indebtedness and are not subject to restrictions on access by Holdings or any
Subsidiary in excess of those required by applicable banking regulations;




     (i) Liens arising by virtue of Uniform Commercial Code financing statement filings (or
similar filings under applicable law) regarding operating leases entered into by Holdings
and the Subsidiaries in the ordinary course of business; and




     (j) any Liens to which any underlying fee interest of the owners of real property
leased by Holdings or any Subsidiary is subject, including any Liens that apply to the
leasehold interests of Holdings or any Subsidiary by virtue of the underlying fee interests
being subject to such Liens;


provided that, except in the case of any Lien referred to in clause (h) above (insofar as such Lien
secures obligations constituting Indebtedness), the term “Permitted Encumbrances” shall not include
any Lien securing Indebtedness.




          “Permitted Holders” shall mean Alon Israel Oil Company, Ltd, a private company organized under
the laws of Israel; Mishkey Galile Elion Agricultural Corporation, A. H. Holdings and Investment In
Fuels & Energy Ltd., Mishkey Harei Yehuda Agricultural Corporation, Granot Cooperative Regional
Organization Corp., Mishkey Hanegev Export Ltd., Mishkey Darom Agricultural Corporation, Mishkey
Beit Shean, Mishkey Emek Hayarden Ltd., Mishkey Hamifratz (1993) Ltd. and Mishkey Emek Israel Ltd.,
each a company organized under the laws of Israel; Bielsol Investments (1987) Ltd., a private
company organized under the laws of Israel; Africa Israel









 



28



Investments Ltd., a public company organized under the laws of Israel; Tabris Investments
Inc., a private company organized under the laws of the British Virgin Islands; and David Weissman
(or any trustee acting on behalf of David Weissman).



          “Permitted Investments” shall mean:




     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;




     (b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit rating
obtainable from S&P or Moody’s;




     (c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, (i) any domestic
office of any commercial bank organized under the laws of the United States of America or
any State thereof that has a combined capital and surplus and undivided profits of not less
than $500,000,000, (ii) Israel Discount Bank of New York or (iii) Bank Leumi USA;




     (d) fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;




     (e) investments in “money market funds” within the meaning of Rule 2a-7 of the
Investment Company Act of 1940, substantially all of whose assets are invested in
investments of the type described in clauses (a) through (d) above; and




     (f) investments in so-called “auction rate” securities rated AAA or higher by S&P or
Aaa or higher by Moody’s and which have a reset date not more than 90 days from the date of
acquisition thereof.



          “person” shall mean any natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership, Governmental Authority or other
entity.



          “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which Holdings or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.



          “Preferred Equity Interests,” as applied to the Equity Interests of any person, shall mean
Equity Interests of any class or classes (however designated) that is









 



29



preferred as to the payment of dividends or distributions, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such person, over Equity Interests
of any other class of such person.



          “Prepayment Event” shall mean:




     (a) any sale, transfer, lease or other disposition (it being understood that a
Casualty to, or a Condemnation of, any asset shall not be deemed to be a disposition
thereof) of any asset of Holdings or any Subsidiary that constitutes Non-ABL Priority
Collateral, other than (i) dispositions described in Sections 6.06(a), 6.06(b) and 6.06(c)
and (ii) other dispositions resulting in aggregate Net Cash Proceeds not exceeding $500,000
during any fiscal year of Holdings;




     (b) any release of the Crack Spread Hedging Cash Collateral from the Liens of the
Crack Spread Hedging Counterparty or the issuer of the Crack Spread Hedging Support LC, as
the case may be;




     (c) the incurrence by Holdings or any Subsidiary of any Indebtedness, other than any
Indebtedness permitted to be incurred by Section 6.01; or




     (d) the issuance by Holdings or the Borrower of any Equity Interests, or the receipt
by Holdings or the Borrower of any capital contribution, other than (i) any issuance of
directors’ qualifying shares, (ii) any issuance of common stock in Holdings to management
or employees of Holdings or any Subsidiary under any employee stock option or stock
purchase plan or any other employee benefit plan and (iii) the issuance of the Permitted
Compensation Incentive Equity Interests.



          “Prime Rate” shall mean the rate of interest per annum announced from time to time by Credit
Suisse as its prime rate in effect at its principal office in New York City. Each change in the
Prime Rate shall be effective from and including the date such change is announced as being
effective.



          “Proceeds Collateral Account” shall have the meaning assigned to such term in Section 10.06.



          “Proposed Obligations Service Plan” shall have the meaning assigned to such term in Section
10.05.



          “Proposed Work Budget” shall have the meaning assigned to such term in Section 10.05.



          “Proposed Work Plan” shall have the meaning assigned to such term in Section 10.05.



          “Recipient” shall have the meaning assigned to such term in Section 2.20(a).









 



30


          “Refinancing Indebtedness” shall mean, in respect of Indebtedness created under the Revolving
Credit Agreement, or under any credit agreement that extends, renews, refinances or replaces the
Revolving Credit Agreement (the “Original Indebtedness”), any Indebtedness created under an asset
based revolving credit agreement that extends, renews, refinances or replaces the Revolving Credit
Agreement (or such other credit agreement) as a whole and not in part; provided that (a) the
maturity of such Refinancing Indebtedness shall not be earlier, and the weighted average life to
maturity of such Refinancing Indebtedness shall not be shorter, than that of such Original
Indebtedness; (b) such Refinancing Indebtedness shall not be required to be repaid or prepaid (in
any manner), whether on one or more fixed dates, upon the occurrence of one or more events or at
the option of any holder thereof (except, in each case, (i) upon the occurrence of an event of
default or a change in control, (ii) as a result of the credit extensions thereunder exceeding the
borrowing base thereunder or (iii) as and to the extent such repayment or prepayment would have
been required pursuant to the terms of such Original Indebtedness) prior to the earlier of (A) the
maturity of such Original Indebtedness and (B) the date 180 days after the Maturity Date; and
(c) such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the
assets that secured such Original Indebtedness (or would have been required to secure such Original
Indebtedness pursuant to the terms thereof), and the secured parties thereunder, or an agent on
their behalf, shall have become a party to the Intercreditor Agreement.



          “Register” shall have the meaning assigned to such term in Section 9.04(c).



          “Related Fund” shall mean, with respect to any Lender that is a fund that invests in bank
loans, any money market account, investment account, fund or other account that invests in bank
loans and is advised or managed by such Lender, an Affiliate of such Lender, the same investment
advisor as such Lender or by an Affiliate of such investment advisor.



          “Related Parties” shall mean, with respect to any specified person, such person’s Affiliates
and the directors, officers, employees, agents, partners, trustees and advisors of such person and
of such person’s Affiliates.



          “Release” shall mean any actual or threatened release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through
the environment or within or upon any building, structure, facility or fixture.



          “Repayment Date” shall have the meaning assigned to such term in Section 2.11(a).



          “Required
Lenders” shall mean, at any time, Lenders holding at
least
662/3% in principal amount
of the Loans outstanding at such time or, if no Loans shall be outstanding, Lenders holding at
least 662/3% in principal amount of the Commitments.









 



31


          “Responsible Officer” of any person shall mean the chairman of the board of directors, chief
executive officer or a Financial Officer of such person.



          “Restricted Payment” shall mean (a) any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in Holdings or any Subsidiary,
or any payment (whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in Holdings or any Subsidiary, and (b) any management,
monitoring, transaction, advisory or similar fees payable to Parent, Holdings or any Affiliate of
either of the foregoing (other than any Subsidiary).



          “Retained Amount” shall mean, at any time, (a) the sum, for each of the Sweep Periods for
which (i) the percentage of the Excess Cash Flow required to be applied to prepay the Loans
pursuant to Section 2.13(b) is 25.0% and (ii) a Compliance Certificate setting forth the
calculation of the Excess Cash Flow for such Sweep Period shall have been delivered pursuant to
Section 5.04(c) prior to such time, of that portion of the Excess Cash Flow for any such Sweep
Period as the Borrower is not required to apply to prepay the Loans pursuant to Section 2.13(b)
(other than as a result of such portion being Deferred Excess Cash Flow), minus (b) the portion of
the Retained Amount previously utilized pursuant to Sections 6.04(m), 6.08(a)(iv), 6.08(b)(iv) and
6.15.



          “Revolving Collateral Agent” shall mean the person that, under the terms of the Intercreditor
Agreement, is the “Revolving Collateral Agent” thereunder.



          “Revolving Credit Agreement” shall mean the Loan and Security Agreement dated as of the date
hereof, among Holdings, the Borrower, each other Subsidiary that may from time to time become a
party thereto, the lenders party thereto and Bank of America, N.A., as agent.



          “Revolving Loan Documents” shall mean the Revolving Credit Agreement, the Revolving Security
Documents and all other instruments, agreements and documents evidencing, guaranteeing or otherwise
governing the terms of extensions of credit under the Revolving Credit Agreement.



          “Revolving Security Documents” shall mean any and all security agreements, pledge agreements,
mortgages and other agreements or documents pursuant to which any Liens are granted to secure any
Indebtedness or other obligations in respect of the Revolving Credit Agreement.



          “S&P” shall mean Standard & Poor’s Rating Service, a division of the McGraw-Hill Companies,
Inc.



          “Sale/Leaseback Transaction” shall mean an arrangement relating to property owned by Holdings
or any Subsidiary whereby Holdings or such Subsidiary sells or transfers such property to any
person and Holdings or any Subsidiary leases such property, or other property that it intends to
use for substantially the same purpose or purposes as the property sold or transferred, from such
person or its Affiliates.









 



32


          “Secured Obligations” shall have the meaning assigned to such term in the Guarantee and
Collateral Agreement.



          “Secured Parties” shall have the meaning assigned to such term in the Guarantee and Collateral
Agreement.



          “Security Documents” shall mean the Guarantee and Collateral Agreement, the Mortgages, the IP
Security Agreements, the Control Agreements and each other security agreement, mortgage or other
instrument or document executed and delivered pursuant to Section 5.09 or 5.10.



          “Seller” shall have the meaning assigned to such term in the recitals.



          “SPV” shall have the meaning assigned to such term in Section 9.04(h).



          “Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is
the number one and the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental reserves),
expressed as a decimal, established by the Board of Governors and any other banking authority,
domestic or foreign, to which the Administrative Agent or any Lender (including any branch,
Affiliate, or other fronting office making or holding a Loan) is subject for Eurocurrency
Liabilities (as defined in Regulation D of the Board of Governors). Eurodollar Loans shall be
deemed to constitute Eurocurrency Liabilities (as defined in Regulation D of the Board of
Governors) and to be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any Lender under such
Regulation D or any comparable regulation. Statutory Reserves shall be adjusted automatically on
and as of the effective date of any change in any reserve percentage.



          “Stock Purchase Agreement” shall mean the Stock Purchase Agreement dated as of May 7, 2008,
among the Seller, the Borrower and, for the limited purposes set forth therein, the Acquired
Company, together with all definitive schedules, exhibits and other agreements effecting the terms
thereof or related thereto (including agreements identified therein as the “Other Agreements”).



          “subsidiary” shall mean, with respect to any person (referred to as the “parent”), any
corporation, partnership, limited liability company, association or other business entity (a) of
which securities or other ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power or more than 50% of the general partnership interests are, at the
time any determination is being made, owned, Controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.



          “Subsidiary” shall mean any subsidiary of Holdings, including the Borrower.









 



33


          “Subsidiary Loan Party” shall mean each Subsidiary that is a party to the Guarantee and
Collateral Agreement. Unless the context otherwise requires, the term “Subsidiary Loan Party”
shall include the Borrower.



          “Sweep Period” shall mean (a) the period that begins on January 1, 2009 and ends on June 30,
2009, (b) the period that begins on July 1, 2009 and ends on December 31, 2009, (c) the period that
begins on January 1, 2010 and ends on June 30, 2010, (d) the period that begins on July 1, 2010 and
ends on September 30, 2010, (e) the period that begins on October 1, 2010 and ends on June 30, 2011
and (f) thereafter, each period of six consecutive months that (i) begins on July 1 of any calendar
year and ends on December 31 of such calendar year or (ii) begins on January 1 of any calendar year
and ends on June 30 of such calendar year.



          “Synthetic Lease” shall mean, as to any person, any lease (including leases that may be
terminated by the lessee at any time) of real or personal property, or a combination thereof,
(a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee
is deemed to own the property so leased for U.S. Federal income tax purposes, other than any such
lease under which such person is the lessor.



          “Synthetic Lease Obligations” shall mean, as to any person, an amount equal to the capitalized
amount of the remaining lease payments under any Synthetic Lease (determined, in the case of a
Synthetic Lease providing for an option to purchase the leased property, as if such purchase were
required at the end of the term thereof) that would appear on a balance sheet of such person
prepared in accordance with GAAP if such obligations were accounted for as Capital Lease
Obligations. For purposes of Section 6.02, a Synthetic Lease Obligation shall be deemed to be
secured by a Lien on the property being leased and such property shall be deemed to be owned by the
lessee.



          “Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions,
charges, liabilities or withholdings imposed by any Governmental Authority.



          “Terminal Casualty or Condemnation Event” shall mean (a) the occurrence of (i) a Casualty
(A) with respect to all or substantially all the Krotz Springs Refinery or (B) that would cost
$335,000,000 or more to repair or replace (excluding the cost of replacement of crude oil or
refined product inventory), where, in the reasonable judgment of the Required Lenders, such repair
or replacement is not expected to be completed on or prior to the six-month anniversary of the
occurrence of such Casualty (or such longer period as may be consented to by the Required Lenders),
or (ii) a Condemnation affecting all or substantially all the Krotz Springs Refinery or in respect
of which Condemnation Proceeds of $335,000,000 or more will be payable or (b) the occurrence of a
Material Casualty or Condemnation and any of (i) a determination by the Borrower not to repair or
replace the assets subject thereto, (ii) the failure of the Borrower to deliver to the Collateral
Agent a Work Certificate complying with Section 10.05(a) within 30 days after the occurrence of
such Material Casualty or Condemnation or (c) the permitted failure by the Collateral Agent to
accept the Proposed









 



34



Work Plan, Proposed Work Budget and Proposed Obligations Service Plan in respect of such
Material Casualty or Condemnation within 90 days after the occurrence of such Material Casualty or
Condemnation.



          “Total Indebtedness” shall mean, as of any date, the sum of (a) the aggregate principal amount
of Indebtedness of the Borrower and its subsidiaries outstanding as of such date, in the amount
that would be reflected on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, and (b) the aggregate principal amount of Indebtedness of the Borrower and
its subsidiaries outstanding as of such date that is not required to be reflected on a balance
sheet in accordance with GAAP, determined on a consolidated basis; provided that, for purposes of
clause (b) of this definition, the term “Indebtedness” shall not include contingent obligations of
the Borrower or any of its subsidiaries as an account party in respect of any letter of credit or
letter of guaranty to the extent such letter of credit or letter of guaranty does not support
Indebtedness.



          “Transaction Costs” shall mean the fees and expenses incurred by, or required to be reimbursed
or paid by, Holdings and the Subsidiaries in connection with the Transactions.



          “Transactions” shall mean (a) the consummation of the Acquisition and the Merger, (b) the
Holdings Contribution and the transfer by Holdings of all the proceeds thereof to the Borrower as a
contribution to the common equity of the Borrower, (c) the execution, delivery and performance by
each Loan Party of the Loan Documents to which it is to be a party, the borrowing of the Loans and
the use of the proceeds thereof, (d) the execution, delivery and performance by Holdings and the
Subsidiaries party thereto of the Revolving Loan Documents, the borrowing of loans and the issuance
of letters of credit thereunder and the use of the proceeds thereof, (e) the execution, delivery
and performance by the Borrower of the Crack Spread Hedging Agreement and (f) the payment of the
Transaction Costs.



          “Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes
hereof, the term “Rate” shall mean the Adjusted LIBO Rate and the Alternate Base Rate.



          “Voting Stock” of a person shall mean all classes of Equity Interests or other interests of
such person then outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.



          “wholly owned” shall mean, in respect of any subsidiary of any person, that Equity Interests
representing 100% of the issued and outstanding Equity Interests (except for directors’ qualifying
shares and, in respect of the Borrower, except for the Permitted Compensation Incentive Equity
Interests) of such subsidiary are, at the time any determination is being made, owned, beneficially
and of record, by such person, another wholly owned subsidiary of such person or any combination
thereof.
















 





 35




          “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




          “Work Certificate” shall have the meaning assigned to such term in Section 10.05.




          SECTION 1.02. Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. The words
“asset” and “property” shall be construed to have the same meaning and effect and to refer to any
and all real and personal, tangible and intangible assets and properties, including cash,
securities, accounts and contract rights. The word “law” shall be construed as referring to all
statutes, rules, regulations, codes and other laws (including official rulings and interpretations
thereunder having the force of law or with which affected persons customarily comply), and all
judgments, orders and decrees, of all Governmental Authorities. Unless the context requires
otherwise, (a) any definition of or reference to any agreement, instrument or other document
(including this Agreement) shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein or, in the case of
any Revolving Loan Document or any other document or instrument evidencing or governing the
Permitted ABL Facility, in the Intercreditor Agreement), (b) any definition of or reference to any
statute, rule or regulation shall be construed as referring thereto as from time to time amended,
supplemented or otherwise modified (including by succession of comparable successor laws), (c) any
reference herein to any person shall be construed to include such person’s successors and assigns
(subject to any restrictions on assignment set forth herein) and, in the case of any Governmental
Authority, any other Governmental Authority that shall have succeeded to any or all functions
thereof, (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof and
(e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer
to Articles and Sections of, and Exhibits and Schedules to, this Agreement.




          SECTION 1.03. Accounting Terms; GAAP; Pro Forma Calculations. (a) Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP as in effect from time to time; provided that, if the Borrower, by notice to
the Administrative Agent, shall request an amendment to any provision hereof to eliminate the
effect of any change occurring after the Closing Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent or the Required Lenders, by notice to
the Borrower, shall request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as










 



36

in effect and applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance herewith.




          (b) All pro forma computations required to be made hereunder giving effect to any transaction
shall be calculated after giving pro forma effect thereto (and to any other such transaction
consummated since the first day of the period for which such pro forma computation is being made
and on or prior to the date of such computation) as if such transaction had occurred on the first
day of the period of four consecutive fiscal quarters ending with the most recent fiscal quarter
for which financial statements shall have been delivered pursuant to Section 5.04(a) or 5.04(b)
(or, prior to the delivery of any such financial statements, ending with the last fiscal quarter
included in the pro forma financial statements referred to in Section 3.05(b)), and, to the extent
applicable, the historical earnings and cash flows associated with the assets acquired or disposed
of and any related incurrence or reduction of Indebtedness, all in accordance with Article 11 of
Regulation S-X under the Securities Act of 1933. If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated
as if the rate in effect on the date of determination had been the applicable rate for the entire
period (taking into account any Hedging Agreement applicable to such Indebtedness if such Hedging
Agreement has a remaining term in excess of 12 months).




          SECTION 1.04. Effectuation of Transactions. On and after the Effective Date, all references
herein to Holdings and the Subsidiaries shall be deemed to be references to such persons, and all
the representations and warranties of the Loan Parties contained in this Agreement and the other
Loan Documents shall be deemed made, in each case, after giving effect to the Acquisition, the
Merger and the other Transactions to occur on the Effective Date, unless the context otherwise
requires.




ARTICLE II




The Credits




          SECTION 2.01. Commitments and Loans. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees to make a Loan in dollars to
the Borrower on the Effective Date in a principal amount not to exceed such Lender’s Commitment.
Amounts repaid or prepaid in respect of the Loans may not be reborrowed. Notwithstanding anything
to the contrary contained herein (and without affecting any other provision hereof), the funded
portion of each Loan to be made on the Effective Date (i.e., the amount advanced in cash to the
Borrower on the Effective Date) shall be equal to 96.0% of the principal amount of such Loan (it
being agreed that the Borrower shall be obligated to repay 100.0% of the principal amount of each
such Loan as provided hereunder).




          SECTION 2.02. Loans. (a) Each Loan shall be made as part of a single Borrowing consisting of
the Loans made by the Lenders ratably in accordance with their Commitments. The failure of any
Lender to make any Loan shall not in itself relieve any other Lender of its obligation to lend
hereunder; provided, however, that the










 



37

Commitments of the Lenders are several and no Lender shall be responsible for the failure of
any other Lender to make any Loan required to be made by such other Lender.




          (b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised entirely of ABR Loans
or Eurodollar Loans as the Borrower may request pursuant to Section 2.03 or 2.10. Each Lender may
at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall not (i) affect the
obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement or
(ii) be inconsistent with the obligations of such Lender under Section 2.21.




          (c) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds not later than 11:00 a.m., New York City time, to
the account of the Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent shall promptly remit the amounts so received to an
account designated by the Borrower in the Borrowing Request or, if a Borrowing shall not occur on
such date because any condition precedent herein specified shall not have been met, shall return
the amounts so received to the respective Lenders.




          (d) Unless the Administrative Agent shall have received notice from a Lender prior to the date
of the Borrowing that such Lender will not make available to the Administrative Agent such Lender’s
portion of such Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) of this Section, and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If the Administrative Agent
shall have so made funds available, then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to the Borrower to but
excluding the date such amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, a rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing and (ii) in the case of such Lender, a rate determined by the
Administrative Agent to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). If such Lender shall repay to the Administrative Agent
such corresponding amount, such amount shall constitute such Lender’s Loan as part of such
Borrowing for purposes of this Agreement.




          SECTION 2.03. Borrowing Procedure. In order to request the Borrowing under Section 2.01, the
Borrower shall hand deliver or fax to the Administrative Agent a duly completed Borrowing Request
(a) in the case of a Eurodollar Borrowing, not later than 12:00 (noon), New York City time, three
Business Days before the proposed Borrowing, and (b) in the case of an ABR Borrowing, not later
than 12:00 (noon), New York City time, on the day of the proposed Borrowing. The Borrowing Request
shall be irrevocable, shall be signed by or on behalf of the Borrower










 



38

and shall specify the following information: (i) whether the Borrowing is to be a Eurodollar
Borrowing or an ABR Borrowing; (ii) the date of the Borrowing (which shall be a Business Day);
(iii) the number and location of the account to which funds are to be disbursed; (iv) the amount of
the Borrowing; and (v) if the Borrowing is to be a Eurodollar Borrowing, the initial Interest
Period with respect thereto; provided, however, that, notwithstanding any contrary specification in
the Borrowing Request, the Borrowing shall comply with the requirements set forth in Section 2.02.
If no election as to the Type of Borrowing is specified in such notice, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in such notice, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. The Administrative Agent shall promptly advise the
Lenders of any notice given pursuant to this Section (and the contents thereof), and of each
Lender’s portion of the requested Borrowing.




          SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender the then unpaid
principal amount of the Loan of such Lender on the Maturity Date and, prior thereto, as provided in
Section 2.11.




          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from the Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time under this Agreement.




          (c) The Administrative Agent shall maintain accounts in which it will record (i) the amount of
each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from any Loan Party for account of the Lenders and each Lender’s share thereof.




          (d) The entries made in the accounts maintained pursuant to paragraphs (b) and (c) of this
Section shall be prima facie evidence of the existence and amounts of the obligations therein
recorded; provided that the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligations of the Borrower to
repay the Loans in accordance with the terms of this Agreement.




          (e) Any Lender may request that the Loan made by it hereunder be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory
note payable to such Lender and its registered assigns and in form and substance reasonably
acceptable to the Administrative Agent and the Borrower. Notwithstanding any other provision of
this Agreement, in the event any Lender shall request and receive such a promissory note, the
interests represented by such note shall at all times (including after any assignment of all or
part of such interests pursuant to Section 9.04) be represented by one or more promissory notes in
such form payable to the payee named therein or its registered assigns.










 



39


          SECTION 2.05. Fees. (a) The Borrower agrees that, in the event the Effective Date shall not
have occurred on or prior to August 15, 2008, the Borrower shall pay to each Lender, through the
Administrative Agent, on the earlier to occur of (i) the Effective Date and (ii) the date of the
termination of such Lender’s Commitment pursuant to Section 2.09 (the required date of such payment
being referred to as the “Commitment Fee Payment Date”), a commitment fee (a “Commitment Fee”) that
shall accrue at 3.75% per annum on the daily unused amount of such Lender’s Commitment during the
period from and including August 16, 2008, to but excluding the Commitment Fee Payment Date. The
Commitment Fee shall be computed on the basis of the actual number of days elapsed in a year of 360
days.




          (b) The Borrower agrees to pay to the Administrative Agent, for its own account, the
administrative fees set forth in the Fee Letter (the “Administrative Agent Fees”), at the times and
in the amounts specified therein.




          (c) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent, for distribution, in the case of the Commitment Fees, to the Lenders entitled
thereto. Once paid, none of the Fees shall be refundable under any circumstances.




          SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Sections 2.07 and 9.09,
the Loans comprising each ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when the Alternate Base
Rate is determined by reference to the Prime Rate and over a year of 360 days at all other times
and calculated from and including the date of such Borrowing to but excluding the date of repayment
thereof) at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin; provided,
however, that, for purposes of this paragraph, if the Alternate Base Rate shall be below 4.25% per
annum on any day, it shall be deemed to be 4.25% per annum for such day.




          (b) Subject to the provisions of Sections 2.07 and 9.09, the Loans comprising each Eurodollar
Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a
year of 360 days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Margin; provided, however, that, for purposes of this
paragraph, if the Adjusted LIBO Rate for any Interest Period in effect for any Borrowing shall be
below 3.25%, then the Adjusted LIBO Rate for such Interest Period shall be deemed to be 3.25%.




          (c) Interest on each Loan shall be payable on the Interest Payment Dates applicable to such
Loan, except as otherwise provided in this Agreement. The applicable Alternate Base Rate or
Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as the case may be,
shall be determined by the Administrative Agent, and such determination shall be conclusive absent
manifest error.




          SECTION 2.07. Default Interest. At any time when a Default or an Event of Default shall have
occurred and be continuing, each of the interest rates referred










 



40

to in Section 2.06 shall be increased by 2.00% per annum. If the Borrower shall default in
the payment of any amount (other than the principal of any Loan) becoming due hereunder or under
any other Loan Document, the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual payment (after as
well as before judgment), at the rate per annum that would be applicable to an ABR Loan under
Section 2.06 plus 2.00% per annum.




          SECTION 2.08. Alternate Rate of Interest. In the event, and on each occasion, that on the day
two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing the
Administrative Agent shall have determined that dollar deposits in the principal amounts of the
Loans comprising such Borrowing are not generally available in the London interbank market, or that
the rates at which such dollar deposits are being offered will not adequately and fairly reflect
the cost to any Lender of making or maintaining its Eurodollar Loan during such Interest Period, or
that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or fax notice or notice by electronic
communication of such determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, any request by the Borrower for a
Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a request for an
ABR Borrowing. Each determination by the Administrative Agent under this Section shall be
conclusive absent manifest error.




          SECTION 2.09. Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall automatically permanently terminate
on the earlier of (i) 5:00 p.m., New York City time, on the Effective Date and (ii) 5:00 p.m., New
York City time, on August 29, 2008.




          (b) The Borrower may at any time permanently terminate, or from time to time permanently
reduce, the Commitments; provided that each reduction of the Commitments shall be in an amount that
is an integral multiple of $5,000,000 and not less than $10,000,000. The Borrower shall notify the
Administrative Agent of any election to terminate or reduce the Commitments under this paragraph at
least three Business Days prior to the effective date of such termination or reduction, specifying
the effective date thereof. Promptly following receipt of any such notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower
pursuant to this paragraph shall be in writing and shall be irrevocable. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.




          SECTION 2.10. Conversion and Continuation of Borrowings.
(a) The Borrower shall have the right at any time upon prior irrevocable telephonic notice to
the Administrative Agent (i) not later than 12:00 (noon), New York City time, on the day of the
proposed conversion, to convert any Eurodollar Borrowing into an ABR Borrowing, (ii) not later than
12:00 (noon), New York City time, three Business Days prior to conversion or continuation, to
convert any ABR Borrowing into a Eurodollar










 



41

Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for an additional
Interest Period, and (iii) not later than 12:00 (noon), New York City time, three Business Days
prior to conversion, to convert the Interest Period with respect to any Eurodollar Borrowing to
another permissible Interest Period, in each case followed by prompt written notice, subject in
each case to the following:





     (A) each conversion or continuation shall be made pro rata among the Lenders in
accordance with the respective principal amounts of the Loans comprising the converted or
continued Borrowing;




     (B) if less than all the outstanding principal amount of any Borrowing shall be
converted or continued, then each resulting Borrowing shall be in an aggregate principal
amount that is an integral multiple of $1,000,000 and not less than $5,000,000; provided,
however, that the Borrower shall not be entitled to request any Borrowing that, if made,
would result in more than six Eurodollar Borrowings outstanding hereunder at any time (with
Borrowings having different Interest Periods, regardless of whether they commence on the
same date, being considered separate Borrowings);




     (C) each conversion shall be effected by each Lender and the Administrative Agent by
recording for the account of such Lender the new Loan of such Lender resulting from such
conversion and reducing the Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of conversion;




     (D) if any Eurodollar Borrowing is converted at a time other than the end of the
Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to
the Lenders pursuant to Section 2.16;




     (E) any portion of a Borrowing maturing or required to be repaid in less than one
month may not be converted into or continued as a Eurodollar Borrowing;




     (F) any portion of a Eurodollar Borrowing that cannot be converted into or continued
as a Eurodollar Borrowing by reason of the immediately preceding clause shall be
automatically converted at the end of the Interest Period in effect for such Borrowing into
an ABR Borrowing; and




     (G) upon notice to the Borrower from the Administrative Agent given at the request of
the Required Lenders, after the occurrence and during the continuance of a Default or an
Event of Default, no outstanding Loan may be converted into, or continued as, a Eurodollar
Loan.



          (b) Each notice pursuant to this Section shall be irrevocable and shall refer to this
Agreement and specify (i) the identity and amount of the Borrowing that the Borrower requests be
converted or continued, (ii) whether such Borrowing is to be converted to or continued as a
Eurodollar Borrowing or an ABR Borrowing, (iii) the date










 



42

of such conversion or continuation (which shall be a Business Day) and (iv) if such Borrowing
is to be converted to or continued as a Eurodollar Borrowing, the Interest Period with respect
thereto. If no Interest Period is specified in any such notice with respect to any conversion to
or continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. The Administrative Agent shall advise the Lenders of any
notice given pursuant to this Section and of each Lender’s portion of any converted or continued
Borrowing. If the Borrower shall not have given notice in accordance with this Section to continue
any Borrowing into a subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be
converted into an ABR Borrowing.




     SECTION 2.11. Repayment of Borrowings. (a) The Borrower shall pay to the Administrative
Agent, for the account of the Lenders, on each of the dates set forth below, or if any such date is
not a Business Day, on the next preceding Business Day (each such date being called a “Repayment
Date”), a principal amount of the Loans equal to the amount set forth opposite such date (as
adjusted from time to time pursuant to Sections 2.11(b), 2.12(c), 2.13(d) and 2.22(c)), together in
each case with accrued and unpaid interest on the principal amount to be paid to but excluding the
date of such payment:



	 	 	 	 	 
	Repayment Date	 	Amount
	March 31, 2009
	 	$	4,600,000	 
	June 30, 2009
	 	$	4,600,000	 
	September 30, 2009
	 	$	4,600,000	 
	December 31, 2009
	 	$	4,600,000	 
	March 31, 2010
	 	$	3,825,000	 
	June 30, 2010
	 	$	3,825,000	 
	September 30, 2010
	 	$	3,825,000	 
	December 31, 2010
	 	$	3,825,000	 
	March 31, 2011
	 	$	3,075,000	 
	June 30, 2011
	 	$	3,075,000	 
	September 30, 2011
	 	$	3,075,000	 
	December 31, 2011
	 	$	3,075,000	 
	March 31, 2012
	 	$	2,300,000	 
	June 30, 2012
	 	$	2,300,000	 
	September 30, 2012
	 	$	2,300,000	 
	December 31, 2012
	 	$	2,300,000	 
	March 31, 2013
	 	$	1,525,000	 
	June 30, 2013
	 	$	1,525,000	 
	September 30, 2013
	 	$	1,525,000	 
	December 31, 2013
	 	$	1,525,000	 












 



43


          (b) In the event the aggregate amount of the Commitments on the Closing Date shall exceed the
aggregate principal amount of the Loans made on the Effective Date, the installments payable on
Repayment Dates under paragraph (a) above shall be reduced ratably by an aggregate amount for all
such installments equal to the amount of such excess.




          (c) Upon the occurrence of a Terminal Casualty or Condemnation Event, upon the demand of the
Required Lenders, all Loans shall become due and payable in full and the Borrower shall repay all
such Loans, together with all accrued but unpaid interest thereon to but excluding the date of
payment and all Fees and other amounts accrued but unpaid hereunder.




          (d) To the extent not previously paid, all Loans shall be due and payable on the Maturity
Date, together with all accrued but unpaid interest thereon to but excluding the date of payment.




          (e) All repayments pursuant to this Section shall be subject to Section 2.16, but shall
otherwise be without premium or penalty.




          SECTION 2.12. Optional Prepayments. (a) The Borrower shall have the right at any time and
from time to time to repay any Borrowing, in whole or in part, upon at least three Business Days’
prior written or fax notice (or telephone notice promptly confirmed by written or fax notice) in
the case of Eurodollar Loans, or written or fax notice (or telephone notice promptly confirmed by
written or fax notice) on the date designated for such prepayment in the case of ABR Loans, to the
Administrative Agent before 12:00 (noon), New York City time; provided, however, that each partial
prepayment shall be in an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000. The Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section and of each Lender’s portion of any prepayment.




          (b) All prepayments pursuant to this Section shall be subject to Section 2.16, but shall
otherwise be without premium or penalty.




          (c) Any prepayment pursuant to this Section shall be applied pro rata against the remaining
scheduled installments of principal due in respect of the Loans under Section 2.11.




          (d) Each notice of prepayment shall specify the prepayment date and the principal amount of
each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay such Borrowing by the amount stated therein on the date stated therein. All
prepayments under this Section shall be accompanied by accrued and unpaid interest on the principal
amount prepaid to but excluding the date of payment.




          SECTION 2.13. Mandatory Prepayments. (a) In the event and on each occasion that Holdings or
any Subsidiary shall receive any Net Cash Proceeds in respect of any Prepayment Event, the Borrower
shall, on the day such Net Cash Proceeds are










 



44

received (or, in the case of a Prepayment Event described in clause (a) of the definition of
such term, within three Business Days after such Net Cash Proceeds are received), prepay Loans in
an aggregate amount equal to (i) 50% of such Net Cash Proceeds, in the case of Net Cash Proceeds in
respect of any Prepayment Event described in clause (d) of the definition of such term, and (ii)
100% of such Net Cash Proceeds, in the case of Net Cash Proceeds in respect of any other Prepayment
Event; provided that, in the case of any event described in clause (a) of the definition of the
term “Prepayment Event”, if each of Holdings and the Borrower shall, prior to the date of the
required prepayment, deliver to the Administrative Agent a certificate of its Financial Officer to
the effect that the Borrower intends to cause the Net Cash Proceeds from such event (or a portion
thereof specified in such certificate) to be applied within 270 days after receipt of such Net Cash
Proceeds to acquire real property, equipment or other fixed assets to be used in the business of
the Borrower and its subsidiaries and certifying that no Default or Event of Default has occurred
and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of
the Net Cash Proceeds from such event (or the portion of such Net Cash Proceeds specified in such
certificate, if applicable) except to the extent of any such Net Cash Proceeds that have not been
so applied by the end of such 270-day period, at which time a prepayment shall be required in an
amount equal to the Net Cash Proceeds that have not been so applied; provided further that, prior
to such application or prepayment, such Net Cash Proceeds (or such portion thereof, if applicable)
shall be deposited into a cash collateral account with respect to which the Collateral Agent shall
have received a counterpart, duly executed and delivered by the Borrower and the depositary bank
with respect thereto, of a Control Agreement (an “Asset Sales Collateral Account”).




          (b) Subject to Section 2.23(a), following the end of each Sweep Period, the Borrower shall
prepay Loans in an aggregate amount equal to (i) 100.0% (or, if the Leverage Ratio as of the last
day of such Sweep Period shall have been less than 0.50 to 1.00, 25.0%) of Excess Cash Flow for
such Sweep Period less (ii) any optional prepayment of Loans made by the Borrower pursuant to
Section 2.12 during such Sweep Period; provided, however, that no prepayment shall be required
pursuant to this paragraph with respect to Excess Cash Flow for any Sweep Period if, and only to
the extent that, at the time such prepayment is required to be made pursuant to this paragraph, (A)
an ABL Availability Deficit shall have occurred as of the last day of the month most recently ended
prior to such time or would result therefrom or (B) an ABL Event of Default shall have occurred and
be continuing (any Excess Cash Flow not applied to prepay Loans by reason of this proviso (unless
subsequently so applied pursuant to the immediately following proviso) is being referred to as the
“Deferred Excess Cash Flow”); provided further, however, that, at any time the Deferred Excess Cash
Flow shall be greater than zero, and so long as no ABL Availability Deficit and no ABL Event of
Default shall have occurred and be continuing at such time, the Borrower shall prepay Loans in an
aggregate amount equal to the amount, if any, by which (x) the Deferred Excess Cash Flow at such
time exceeds (y) the ABL Availability Threshold at such time. Each prepayment pursuant to this
paragraph shall be made no later than the fifth day following the date on which financial
statements covering the most recent fiscal quarter of the Borrower included in such Sweep Period
are first delivered pursuant to Section 5.01(a) or 5.01(b) (and in any event no later than the
fifth day following the last










 



45

day on which such financial statements may be delivered in compliance with such Section);
provided, however, that each prepayment required to be made pursuant to the immediately preceding
proviso shall be made no later than the first Business Day following the date of the satisfaction
of the requirements to the making of such prepayment set forth in such proviso.




          (c) All prepayments pursuant to this Section shall be subject to Section 2.16, but shall
otherwise be without premium or penalty.




          (d) Any prepayment pursuant to this Section shall be applied pro rata against the remaining
scheduled installments of principal due in respect of the Loans under Section 2.11.




          (e) Notwithstanding any other provision of this Section, the Borrower may defer any mandatory
prepayment of less than $250,000 that otherwise would be required to be made under this Section
(other than, until and unless the Debt Service Reserve Account Requirement shall have been
satisfied, any payment under paragraph (b) above that is required to be deposited into the Debt
Service Reserve Account pursuant to Section 2.23(a)) until the aggregate amount of (i) all
mandatory prepayments so deferred and not theretofore made and (ii) any mandatory prepayment then
due shall be at least $250,000, at which time the Borrower shall make all such deferred
prepayments; provided, however, that prior to the application of such deferred amounts pursuant to
this Section, such amounts shall be deposited into an Asset Sales Collateral Account.




          (f) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment
required under this Section, (i) a certificate signed by a Financial Officer of each of Holdings
and the Borrower setting forth in reasonable detail the calculation of the amount of such
prepayment and (ii) to the extent practicable, at least five Business Days’ prior written or fax
notice. Each such notice shall specify the prepayment date and the principal amount of each
Borrowing (or portion thereof) to be prepaid. Promptly following receipt of any such notice, the
Administrative Agent shall advise the Lenders of any notice given pursuant to this Section and of
each Lender’s portion of any prepayment. Prepayments shall be accompanied by accrued interest on
the amounts prepaid.




          SECTION 2.14. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision of this Agreement, if any Change in Law (other than
relating to Taxes) shall impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or for the account
of or credit extended by any Lender (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate) or shall impose on any Lender or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, and
the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
reduce the amount of any sum received or receivable by such Lender hereunder (whether of










 



46

principal, interest or otherwise) by an amount deemed by such Lender to be material, then the
Borrower from time to time shall pay to such Lender upon demand such additional amount or amounts
as will compensate such Lender for such additional costs or expenses incurred or reduction
suffered.




          (b) If any Lender shall have determined that any Change in Law (other than relating to Taxes)
regarding capital adequacy has or would have the effect of reducing the rate of return on such
Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement or the Loans made by such Lender pursuant hereto to a level below that which such
Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s policies and the policies of such Lender’s holding company with respect
to capital adequacy), in each case by an amount deemed by such Lender to be material, then from
time to time the Borrower shall pay to such Lender upon demand such additional amount or amounts as
will compensate such Lender or such Lender’s holding company for any such reduction suffered.




          (c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such
Lender or such Lender’s holding company, as specified in paragraph (a) or (b) of this Section,
shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate delivered by it within
20 days after its receipt of the same.




          (d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section for any increased
costs or expenses incurred or reductions suffered more than 120 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased costs or expenses
or reductions and of such Lender’s intention to claim compensation therefor; provided further that,
if the Change in Law giving rise to such increased costs or expenses or reductions is retroactive,
then the 120-day period referred to above shall be extended to include the period of retroactive
effect thereof.




          SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision of this Agreement,
if any Change in Law shall make it unlawful for any Lender to make or maintain any Eurodollar Loan
or to give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan,
then, by written notice to the Borrower and to the Administrative Agent:





     (i) such Lender may declare that Eurodollar Loans will not thereafter (for the
duration of such unlawfulness) be made by such Lender hereunder (or be continued for
additional Interest Periods) and ABR Loans will not thereafter (for such duration) be
converted into Eurodollar Loans, whereupon any request for a Eurodollar Borrowing (or to
convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing
for an additional Interest Period) shall, as to such Lender only, be deemed a request for
an ABR Loan (or a









 



47



     request to continue an ABR Loan as such for an additional Interest Period or to
convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such declaration
shall be subsequently withdrawn; and




     (ii) such Lender may require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically
converted to ABR Loans as of the effective date of such notice as provided in paragraph (b)
of this Section.


In the event any Lender shall exercise its rights under clause (i) or (ii) above, all payments and
prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that
would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead
be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.




          (b) For purposes of this Section, a notice to the Borrower by any Lender shall be effective as
to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest Period then
applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.




          SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against any loss or expense
that such Lender may sustain or incur as a consequence of (a) any event, other than a default by
such Lender in the performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii) the conversion of any Eurodollar
Loan to an ABR Loan, or the conversion of the Interest Period with respect to any Eurodollar Loan,
in each case other than on the last day of the Interest Period in effect therefor, or (iii) any
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be made pursuant to a
conversion or continuation under Section 2.10) not being made after notice of such Loan shall have
been given by the Borrower hereunder (any of the events referred to in this clause (a) being called
a “Breakage Event”) or (b) any default in the making of any payment or prepayment required to be
made hereunder. In the case of any Breakage Event, such loss shall include an amount equal to the
excess, as reasonably determined by such Lender, of (A) its cost of obtaining funds for the
Eurodollar Loan that is the subject of such Breakage Event for the period from the date of such
Breakage Event to the last day of the Interest Period in effect (or that would have been in effect)
for such Loan over (B) the amount of interest likely to be realized by such Lender in redeploying
the funds released or not utilized by reason of such Breakage Event for such period. A certificate
of any Lender setting forth any amount or amounts which such Lender is entitled to receive pursuant
to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.




          SECTION 2.17. Pro Rata Treatment. Except as required under Section 2.15, each Borrowing, each
payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each
reduction of the Commitments and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any










 



48

Type shall be allocated pro rata among the Lenders in accordance with their respective
Commitments (or, if the Commitments shall have terminated, in accordance with the respective
principal amounts of their outstanding Loans). Each Lender agrees that in computing such Lender’s
portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion,
round each Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount.




          SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise
of a right of banker’s lien, setoff or counterclaim against the Borrower or any other Loan Party,
or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Loan or Loans as a result of which the
unpaid principal portion of its Loans shall be proportionately less than the unpaid principal
portion of the Loans of any other Lender, it shall be deemed simultaneously to have purchased from
such other Lender at face value, and shall promptly pay to such other Lender the purchase price
for, a participation in the Loans of such other Lender, so that the aggregate unpaid principal
amount of the Loans and participations in Loans held by each Lender shall be in the same proportion
to the aggregate unpaid principal amount of all Loans then outstanding as the principal amount of
its Loans prior to such exercise of banker’s lien, setoff or counterclaim or other event was to the
principal amount of all Loans outstanding prior to such exercise of banker’s lien, setoff or
counterclaim or other event; provided, however, that (a) if any such purchase or purchases or
adjustments shall be made pursuant to this Section and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent
of such recovery and the purchase price or prices or adjustment restored without interest and (b)
the provisions of this Section shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any of its Loans to any
assignee or participant, other than to Holdings, the Borrower, Parent or any other Affiliate of
Holdings or Parent (as to which the provisions of this Section shall apply). The Borrower and
Holdings expressly consent to the foregoing arrangements and agree that any Lender holding a
participation in a Loan deemed to have been so purchased may exercise any and all rights of
banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower or
Holdings to such Lender by reason thereof as fully as if such Lender had made a Loan directly to
the Borrower in the amount of such participation.




          SECTION 2.19. Payments. (a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any Fees or other amounts) hereunder and under any other Loan Document
not later than 2:00 p.m., New York City time, on the date when due in immediately available
dollars, without setoff, defense or counterclaim. Each such payment shall be made to the
Administrative Agent at its offices at Eleven Madison Avenue, New York, NY 10010. The
Administrative Agent shall promptly distribute to each Lender any payments received by the
Administrative Agent on behalf of such Lender. Any amounts received after such time on any date
may,










 



49



in the sole discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon.




          (b) Except as otherwise expressly provided herein, whenever any payment (including principal
of or interest on any Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest or Fees, if applicable.




          (c) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders that
the Borrower will not make such payment, the Administrative Agent may assume, in its sole
discretion, that the Borrower has made such payment on such date in accordance with paragraph (a)
of this Section, and the Administrative Agent may, in reliance upon such assumption, disburse such
payment to the Lenders in accordance with this Agreement. If the Administrative Agent shall have
so disbursed the payment to the Lenders, to the extent that the Borrower shall not have made the
payment to the Administrative Agent, each Lender agrees to return any amount paid to it by the
Administrative Agent in reliance on this paragraph forthwith on demand together with interest
thereon, for each day from and including the date such amount is disbursed to it to but excluding
the date of payment to the Administrative Agent, at a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination shall be conclusive
absent manifest error).




          (d) If any Lender shall fail to make any payment required to be made by it to the
Administrative Agent pursuant to Sections 2.02(d), 2.18 or 9.05(c), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender to satisfy such
Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.




          SECTION 2.20. Taxes. (a) Any and all payments by or on account of any obligation of the
Borrower or any other Loan Party hereunder or under any other Loan Document, whether to the
Administrative Agent, any Lender or any other person to which any such obligation is owed (each of
the foregoing being called a “Recipient”), shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided that if the Borrower or any other Loan Party
shall be required to deduct any Indemnified Taxes or Other Taxes from any such payment, then
(i) the sum payable shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section) the Recipient
receives an amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower or such other Loan Party shall make such deductions and (iii) the Borrower or
such other Loan Party shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.










 



50


          (b) In addition, the Borrower and each other Loan Party shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.




          (c) The Borrower shall indemnify each Recipient, within 20 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by such Recipient on or with
respect to any payment by or on account of any obligation of the Borrower or any other Loan Party
hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Borrower
by the Recipient, or by the Administrative Agent on behalf of the Recipient, shall be conclusive
absent manifest error. If a Recipient determines, in its sole discretion, that it has received a
refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this Section, it
shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section with respect to the Indemnified Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Recipient and
without interest (other than any interest paid by the relevant Governmental Authority with respect
to such refund); provided that the Borrower, upon the request of such Recipient, agrees to repay to
such Recipient the amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) in the event such Recipient is required to repay
such refund to such Governmental Authority. This Section shall not be construed to require any
Recipient to make available its tax returns (or any other information relating to its taxes which
it deems confidential) to the Borrower or any other person.




          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower or any other Loan Party to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.




          (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the laws of the United States of America, or any treaty to which the United States of America
is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a reduced rate.




          (f) Any Lender that is a “United States person”, as defined in Section 7701(a)(30) of the
Code, shall deliver to the Borrower and the Administrative Agent on or prior to the date on which
such Lender becomes a Lender under this










 



51

Agreement (and from time to time thereafter) duly completed original signed copies of IRS Form
W-9, or any successor form, in order to comply with U.S. backup withholding requirements.




          SECTION 2.21. Replacement of Lenders Under Certain Circumstances; Duty to Mitigate. (a) In
the event (i) any Lender defaults in its obligation to fund Loans hereunder, (ii) any Lender
delivers a certificate requesting compensation pursuant to Section 2.14, (iii) any Lender delivers
a notice described in Section 2.15, (iv) the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.20 or (v)
any Lender withholds its consent to any proposed amendment, modification or waiver of any Loan
Document that cannot become effective without the consent of such Lender under Section 9.08, and
that has been consented to by the Required Lenders, the Borrower may, at its sole expense and
effort (including with respect to the processing and recordation fee referred to in Section
9.04(b)), upon notice to such Lender and the Administrative Agent, require such Lender to transfer
and assign, without recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all of its interests, rights and obligations under this Agreement and any other Loan
Document to an Eligible Assignee that shall assume such assigned obligations and, with respect to
clause (v) above, shall consent to such proposed amendment, modification or waiver of any Loan
Document (which assignee may be another Lender, if a Lender accepts such assignment); provided that
(x) such assignment shall not conflict with any law, rule or regulation or order of any court or
other Governmental Authority having jurisdiction, (y) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not unreasonably be withheld or
delayed, and (z) the Borrower or such assignee shall have paid to the affected Lender in
immediately available funds an amount equal to the sum of the principal of and interest accrued to
the date of such payment on the outstanding Loans of such Lender plus all other amounts accrued for
the account of such Lender hereunder (including any amounts under Sections 2.14 and 2.16); provided
further that, if prior to any such transfer and assignment in accordance with clause (ii), (iii) or
(iv), the circumstances or event that resulted in such Lender’s claim for compensation under
Section 2.14 or notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the case
may be, cease to cause such Lender to suffer increased costs, expenses or reductions in amounts
received or receivable or reduction in return on capital, or cease to have the consequences
specified in Section 2.15, or cease to result in amounts being payable under Section 2.20, as the
case may be (including as a result of any action taken by such Lender pursuant to paragraph (b) of
this Section), or if such Lender shall waive its right to claim further compensation under
Section 2.14 in respect of such circumstances or event or shall withdraw its notice under
Section 2.15 or shall waive its right to further payments under Section 2.20 in respect of such
circumstances or event or shall consent to the proposed amendment, modification or waiver, as the
case may be, then such Lender shall not thereafter be required to make any such transfer and
assignment hereunder. Each Lender hereby grants to the Administrative Agent an irrevocable power
of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such
Lender as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such
Lender’s interests hereunder in the circumstances contemplated by this paragraph.










 



52


          (b) If (i) any Lender shall request compensation under Section 2.14, (ii) any Lender delivers
a notice described in Section 2.15 or (iii) the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.20, then
such Lender shall use reasonable efforts (which shall not require such Lender to incur an
unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden
deemed by it to be significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations
hereunder to another of its offices, branches or affiliates, if such filing or assignment would
reduce its claims for compensation under Section 2.14 or enable it to withdraw its notice pursuant
to Section 2.15 or would reduce amounts payable pursuant to Section 2.20, as the case may be, in
the future. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such filing or assignment, delegation and transfer.




          SECTION 2.22. Parent Change of Control Put. (a) Upon the occurrence of a Parent Change of
Control, each Lender shall have the right to require the Borrower to prepay such Lender’s Loans at
101.0% of the aggregate principal amount thereof on the date of such prepayment. All prepayments
under this Section shall be accompanied by accrued and unpaid interest on the principal amount
prepaid to but excluding the date of payment and shall be subject to Section 2.16.




          (b) Within 30 days following any Parent Change of Control, the Borrower shall provide written
notice to each Lender, with a copy to the Administrative Agent, stating:





     (i) that a Parent Change of Control has occurred and that such Lender has the right to
require the Borrower to prepay such Lender’s Loans in accordance with this Section (such
right being called the “Parent Change of Control Put”);




     (ii) the circumstances and relevant facts regarding such Parent Change of Control;




     (iii) the prepayment date (which shall be no earlier than 30 days nor later than
60 days from the date such notice is given); and




     (iv) the instructions that a Lender must follow in order to have its Loans prepaid
under this Section (which shall be consistent with this Section and shall be determined by
the Borrower and reasonably satisfactory to the Administrative Agent).



          (c) The Borrower shall prepay in accordance with paragraph (a) above all Loans (together with
all other amounts referred to in paragraph (a) above) as to which the Parent Change of Control Put
shall have been exercised, on the prepayment date specified in the notice referred to in
paragraph (b) above. Any prepayment pursuant to this Section (but not, for the avoidance of doubt,
in excess of 100.0% of the aggregate










 



53

principal amount of the Loans prepaid) shall be applied pro rata against the remaining
scheduled installments of principal due in respect of the Loans under Section 2.11.
Notwithstanding the foregoing provisions of this Section, the Borrower shall not be required to
provide the notice referred to in paragraph (b) above or to make the prepayment required under this
Section following a Parent Change of Control if a third party provides, on behalf of the Borrower,
such notice in the manner, at the times and otherwise in compliance with the requirements set forth
in this Section and prepays, on behalf of the Borrower and in accordance with paragraph (a) above,
all Loans (together with all such other amounts) as to which the Parent Change of Control Put shall
have been exercised.




          SECTION 2.23. Debt Service Reserve Account. (a) Until and unless the Debt Service Reserve
Account Requirement shall have been satisfied, all amounts required to be applied to the prepayment
of Loans pursuant to Section 2.13(b) shall instead be deposited by the Borrower into the Debt
Service Reserve Account on the date on which such prepayment would otherwise be due. Amounts may
also be deposited into the Debt Service Reserve Account pursuant to Section 2.24.




          (b) Amounts on deposit in the Debt Service Reserve Account may be withdrawn and applied by the
Administrative Agent to make, on behalf of the Borrower, any payment required to be made, and not
otherwise made, by the Borrower under Section 2.06, 2.07, 2.11 or 2.22 or Article VII and, pending
their application, will be held by the Administrative Agent as security for the Loan Document
Obligations. The Administrative Agent shall invest or reinvest, in consultation with the Borrower,
amounts on deposit in the Debt Service Reserve Account in Permitted Investments; provided that the
investment of such amounts shall be controlled solely by the Administrative Agent during the
continuance of any Default or Event of Default. All interest on any amounts on deposit in the Debt
Service Reserve Account shall be for the account of the Borrower, and the Administrative Agent may,
from time to time upon receipt of a certificate of a Financial Officer of each of Holdings and the
Borrower, dated as of such time, to the effect that no Default or Event of Default shall have
occurred and is continuing, and so long as at such time no Debt Service Reserve Deficit shall have
occurred and is continuing or would result therefrom, transfer from the Debt Service Reserve
Account to an account specified by the Borrower the amount of such interest received.




          SECTION 2.24. Debt Service Reserve Support LC. (a) If, at any time after the Debt Service
Reserve Account Requirement shall have been satisfied, the Borrower shall have delivered to the
Administrative Agent a Debt Service Support LC in a face amount of at least the Debt Service
Support LC Amount, together with a certificate of a Financial Officer of each of Holdings and the
Borrower, dated as of the date of effectiveness of such Debt Service Support LC, to the effect that
no Default or Event of Default shall have occurred and is continuing, then no later than the first
Business Day after the date of effectiveness of such Debt Service Support LC the Administrative
Agent shall transfer from the Debt Service Reserve Account to an account specified by the Borrower
all funds then on deposit therein.










 



54


          (b) The Borrower shall promptly notify the Administrative Agent in writing if the debt rating
of the issuer of any Debt Service Support LC shall at any time cease to meet the rating
requirements set forth in the definition of the term “Debt Service Reserve Support LC” and, unless
the Administrative Agent shall have made a drawing on such Debt Service Support LC for the full
amount thereof, shall promptly thereafter replace such Debt Service Support LC with an effective
replacement letter of credit that meets the requirements set forth in the definition of the term
“Debt Service Support LC” and is in a face amount of at least the Debt Service Support LC Amount.
All the proceeds of any such drawing made by the Administrative Agent shall be deposited into the
Debt Service Reserve Account.




          (c) The Borrower shall provide to the Administrative Agent at least 15 days’ prior written
notice of the expiration of any Debt Service Support LC and, unless the Administrative Agent shall
have made a drawing on such Debt Service Support LC for the full amount thereof, shall prior to the
expiration thereof replace such Debt Service Support LC with an effective replacement letter of
credit that meets the requirements set forth in the definition of the term “Debt Service Support
LC” and is in a face amount of at least the Debt Service Support LC Amount. All the proceeds of
any such drawing made by the Administrative Agent shall be deposited into the Debt Service Reserve
Account.




          (d) At any time that any Debt Service Support LC is in effect, the Administrative Agent may
make drawings thereunder (i) to make, on behalf of the Borrower, any payment required to be made,
and not otherwise made, by the Borrower under Section 2.06, 2.07, 2.11 or 2.22 or Article VII or
(ii) after the occurrence and during the continuance of an Event of Default, for any other purpose.
All the proceeds of any such drawing referred to in clause (ii) above made by the Administrative
Agent shall, pending application thereof to make any payment of the type referred to in clause (i)
above, be deposited into the Debt Service Reserve Account.




ARTICLE III




Representations and Warranties




          Each of Holdings and the Borrower represents and warrants to the Administrative Agent, the
Collateral Agent and each of the Lenders that:




          SECTION 3.01. Organization; Powers. Each Loan Party (a) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite
power and authority and all material Governmental Approvals required for the ownership and
operation of its assets and the conduct of its business as now conducted and as proposed to be
conducted, (c) is qualified to do business in, and is in good standing in, every jurisdiction where
such qualification is required, except where the failure so to qualify could not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect and (d) has the
power and authority to execute, deliver and perform its obligations under each Loan

















 





55



Document and each other agreement or instrument contemplated thereby to which it is or will be
a party and, in the case of the Borrower, to borrow hereunder.




          SECTION 3.02. Authorization; Absence of Conflicts. The Transactions (a) have been duly
authorized by all requisite corporate and, if required, stockholder action of each Loan Party and
(b) will not (i) violate any provision of law, statute, rule or regulation or any order of any
Governmental Authority applicable to Holdings or any of its Affiliates, or of the certificate or
articles of incorporation or other constitutive documents or bylaws of Holdings or any Subsidiary,
(ii) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of
time or both) a default under, give rise to any right to require any prepayment, repurchase or
redemption of any obligation under, or give rise to any right of, or result in, any termination,
cancellation, acceleration or right of renegotiation of any obligation under, any indenture or
other agreement or instrument to which Holdings or any Subsidiary is a party or by which any of
them or any of their assets are or may be bound or (iii) result in the creation or imposition of
any Lien upon or with respect to any assets now owned or hereafter acquired by Holdings or any
Subsidiary (other than Liens created under the Loan Documents or under the Revolving Loan
Documents, Liens on the Crack Spread Hedging Cash Collateral and the deposit made pursuant to the
Stock Purchase Agreement). Each of Holdings and the Subsidiaries has been duly designated as, and
constitutes, an “Unrestricted Subsidiary” under, and as defined in, the Existing Parent Term Credit
Agreement.




          SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by
Holdings and the Borrower and constitutes, and each other Loan Document when executed and delivered
by any Loan Party that is a party thereto will constitute, a legal, valid and binding obligation of
such Loan Party, enforceable against such Loan Party in accordance with its terms (subject to
applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’
rights generally and subject, as to enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity or at law)).




          SECTION 3.04. Governmental Approvals. (a) No Governmental Approval or any other action by
any Governmental Authority is or will be required in connection with the Transactions, except for
(a) filings necessary to perfect Liens created under the Loan Documents and under the Revolving
Loan Documents and (b) such as have been, or, in the case of filings relating to the consummation
of the Acquisition and the Merger, prior to or substantially concurrently with the funding of the
Loans on the Effective Date will be, obtained or made and are (or will so be) in full force and
effect.




          (b) All Governmental Approvals required for the ownership of the Krotz Springs Refinery or
the operation thereof will be, on the Effective Date, in full force and effect, and, to the
knowledge of Holdings and the Subsidiaries, no basis for the revocation, termination, withdrawal or
other lapse of the effectiveness thereof exists, in each case except where the absence of such
Governmental Approval could not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.










 



56




          SECTION 3.05. Financial Statements. (a) The Borrower has heretofore furnished to the
Lenders the balance sheets of the Krotz Springs Refining Business (i) as of December 31, 2007 and
2006 and the statements of income and cash flows for the years ended December 31, 2007, 2006 and
2005, in each case audited by and accompanied by the opinion of KPMG LLP, an independent registered
public accounting firm, and (ii) balance sheets of the Krotz Springs Refining Business as of March
31, 2008, and the statements of income and cash flows for the three months ended March 31, 2008.
Such financial statements present fairly, in all material respects, the financial condition and
results of operations and cash flows of the Krotz Springs Refining Business as of such dates and
for such periods. Such balance sheets and the notes thereto disclose all material liabilities,
direct or contingent, of the Krotz Springs Refining Business as of the dates thereof. Such
financial statements were prepared in accordance with GAAP applied on a consistent basis, subject
to normal year-end adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above.




          (b) The Borrower has heretofore furnished to the Lenders its unaudited pro forma consolidated
balance sheet and related pro forma statements of income and cash flows as of and for the 12-month
period ending on December 31, 2007, prepared giving effect to the Transactions as if they had
occurred, with respect to such balance sheet, on such date and, with respect to such other
financial statements, on the first day of such 12-month period. Such pro forma consolidated
financial statements have been prepared in good faith by the Borrower, based on assumptions
believed by the Borrower to be reasonable, are based on the best information reasonably available
to the Borrower as of the date of delivery thereof, accurately reflect all material adjustments
required to be made to give effect to the Transactions and present fairly, in all material
respects, on a pro forma basis the estimated consolidated financial condition and results of
operations and cash flows of the Borrower and its consolidated subsidiaries as of such date and for
such period, assuming that the Transactions had actually occurred on such date or at the beginning
of such period, as the case may be.




          SECTION 3.06. No Material Adverse Change. Since December 31, 2007, there has been no event,
condition or development that has resulted, or could reasonably be expected to result, in a
materially adverse effect on the business, assets, liabilities, operations, condition (financial or
otherwise) or prospects of Holdings and the Subsidiaries, taken as a whole.




          SECTION 3.07. Title to Properties; Possession Under Leases.
(a) Each of Holdings and the Subsidiaries has good and indefeasible title to, or valid
leasehold interests in, all its material assets (including all Mortgaged Properties), except for
Permitted Encumbrances and minor defects in title that do not materially interfere with its ability
to conduct its business as currently conducted or to utilize such properties and assets for their
intended purposes. All such material assets are free and clear of Liens, other than Liens
permitted by Section 6.02. On the Effective Date, the assets of Holdings and the Subsidiaries
(including rights under any transitional services agreement entered into with the Seller) will be
sufficient to operate the Krotz Springs Refinery and to conduct the Krotz Springs Refining
Business, in each case, substantially in the manner










 



57



as currently conducted or as proposed to be conducted by the Borrower on the Effective Date.




          (b) Each of Holdings and the Subsidiaries has complied in all material respects with all
obligations under all material leases to which it is a party and all such leases are in full force
and effect. Each of Holdings and the Subsidiaries enjoys peaceful and undisturbed possession under
all such material leases.




          (c) Neither Holdings nor any Subsidiary has received any notice, or has any knowledge, of any
pending or contemplated Condemnation of any material Mortgaged Property or any sale or disposition
thereof in lieu of condemnation.




          (d) Neither Holdings nor any Subsidiary is obligated under any right of first refusal, option
or other contractual right to sell, assign or otherwise dispose of any material Mortgaged Property
or any interest therein.




          SECTION 3.08. Subsidiaries. Upon delivery thereof on the Effective Date, Schedule 3.08 will
set forth, as of the Effective Date, a complete and correct list of the name and jurisdiction of
organization of, and the percentage of each class of Equity Interests owned by Holdings or any
Subsidiary in, each Subsidiary. Holdings owns all the issued and outstanding Equity Interests in
the Borrower, other than the Permitted Compensation Incentive Equity Interests. Neither Holdings
nor any Subsidiary owns any Equity Interests in any person that is not a Subsidiary. Each
Subsidiary is a wholly owned Domestic Subsidiary.




          SECTION 3.09. Litigation; Compliance with Laws. (a) There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now pending or, to the
knowledge of Holdings or any Subsidiary, threatened against or affecting Holdings or any Subsidiary
or any business, property or rights of any such person (i) that involve any Loan Document or the
Transactions or (ii) as to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.




          (b) None of Holdings, any Subsidiary or any of their material assets is in violation of, nor
will the continued operation of their material assets as currently conducted violate, any law, rule
or regulation (including any zoning, building, Environmental Law, ordinance, code or approval or
any building permits) or any restrictions of record or agreements affecting any Mortgaged Property,
or is in default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect.




          SECTION 3.10. Agreements. (a) Neither Holdings nor any Subsidiary is a party to any
agreement or instrument, or is subject to any corporate restriction, that, individually or in the
aggregate, has resulted or could reasonably be expected to result in a Material Adverse Effect.










 



58




          (b) Neither Holdings nor any Subsidiary (nor, to the knowledge of Holdings or any Subsidiary,
any other person) is in default in the performance, observance or fulfillment of any of its
obligations, covenants or conditions contained in any indenture or other agreement or instrument to
which it is a party or by which it or any of its assets are or may be bound (including any
ExxonMobil Pipeline Supply Contract), and no condition exists that, with the giving of notice or
the lapse of time or both, would constitute such a default, except, in each case, where the
consequences, direct or indirect, of such default or defaults could not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.




          (c) Upon delivery thereof on the Effective Date, Schedule 3.10 will set forth, as of the
Effective Date, each ExxonMobil Pipeline Supply Contract. Each ExxonMobil Pipeline Supply Contract
is, as of the Effective Date, in full force and effect.




          SECTION 3.11. Federal Reserve Regulations. (a) Neither Holdings nor any Subsidiary is
engaged or will engage, principally or as one of its important activities, in the business of
buying or carrying Margin Stock or extending credit for the purpose of buying or carrying Margin
Stock.




          (b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry any Margin Stock or to
refinance any Indebtedness originally incurred for such purpose or for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations of the Board of
Governors, including Regulations T, U and X.




          SECTION 3.12. Investment Company Act. Neither Holdings nor any Subsidiary is an “investment
company” as defined in, or subject to regulation under, the Investment Company Act of 1940.




          SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of the Loans only for the
purposes specified in the recitals to this Agreement.




          SECTION 3.14. Tax Returns. Each of Holdings and the Subsidiaries has filed or caused to be
filed all federal, state, local and foreign Tax returns or materials required to have been filed by
it and has paid or caused to be paid all Taxes due and payable by it and all assessments received
by it, except Taxes that are being contested in good faith by appropriate proceedings and for which
Holdings or such Subsidiary, as applicable, has set aside on its books adequate reserves.




          SECTION 3.15. No Material Misstatements. Neither the Confidential Information Memorandum nor
any other report, financial statement, schedule, certificate or other information furnished by or
on behalf of Holdings or any Subsidiary to the Administrative Agent, the Collateral Agent, the
Arranger or any Lender in connection with the negotiation of any Loan Document or included therein
or delivered pursuant thereto contained, contains or will contain any material misstatement of fact
or omitted, omits or will omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were, are or will be made, not










 



59



misleading; provided that to the extent any such report, financial statement, schedule,
certificate or other information was based upon or constitutes a forecast or projection, Holdings
and the Borrower represent only that Holdings and the Subsidiaries acted in good faith and utilized
reasonable assumptions and due care in the preparation of such report, financial statement,
schedule, certificate or other information.




          SECTION 3.16. Employee Benefit Plans. Each of Holdings and its ERISA Affiliates is in
compliance in all respects with the applicable provisions of ERISA and the Code and the regulations
and published interpretations thereunder, except where such noncompliance could not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect. No ERISA
Events have occurred or are reasonably expected to occur that could, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect. The accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the last annual measurement date applicable thereto,
exceed by more than $20,000,000 the fair market value of the assets of such Plan, and the
accumulated benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the last annual
measurement dates applicable thereto, exceed by more than $20,000,000 the fair market value of the
assets of all such underfunded Plans.




          SECTION 3.17. Environmental Matters. Except as set forth in Schedule 3.17 and except with
respect to any other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither Holdings nor any Subsidiary (a) has failed
to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (b) has become subject to any Environmental
Liability, (c) has received notice of any claim with respect to any Environmental Liability or (d)
knows of any basis for any Environmental Liability of Holdings or any Subsidiary. Since the
Closing Date, there has been no change in the status of the matters disclosed on Schedule 3.17
that, individually or in the aggregate, has resulted in, or materially increased the likelihood of,
a Material Adverse Effect.




          SECTION 3.18. Insurance. Upon delivery thereof on the Effective Date, Schedule 3.18 will set
forth a complete and correct description of all insurance maintained by or on behalf of Holdings
and the Subsidiaries as of the Effective Date. As of the Effective Date, such insurance will be in
full force and effect and all premiums thereunder shall be duly paid. Holdings and the
Subsidiaries have insurance in such amounts and covering such risks and liabilities as are required
under Section 5.02.




          SECTION 3.19. Security Documents. (a) The Guarantee and Collateral Agreement, upon
execution and delivery thereof by the parties thereto, will create in favor of the Collateral
Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in
the Collateral (as defined in the Guarantee and Collateral Agreement) and (i) when the Collateral
(as so defined) constituting certificated securities (as defined in the Uniform Commercial Code) is
delivered to the Collateral Agent, together with instruments of transfer duly endorsed in blank,
the security interest created










 



60



under the Guarantee and Collateral Agreement will constitute a fully perfected security
interest in all right, title and interest of the pledgors thereunder in such Collateral, prior and
superior in right to any other person, but subject to the Intercreditor Agreement, and (ii) when
financing statements in appropriate form are filed in the applicable filing offices, the security
interest created under the Guarantee and Collateral Agreement will constitute a fully perfected
security interest in all right, title and interest of the Loan Parties in the remaining Collateral
(as so defined) to the extent perfection can be obtained by filing Uniform Commercial Code
financing statements, prior and superior to the rights of any other person, except for rights
secured by Liens permitted by Section 6.02.




          (b) Each Mortgage, upon execution and delivery thereof by the parties thereto, will create in
favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in all of the applicable mortgagor’s right, title and interest in and
to the Mortgaged Properties thereunder and the proceeds thereof, and when the Mortgages have been
filed in the offices specified therein, the Mortgages will constitute a fully perfected security
interest in all right, title and interest of the mortgagors in the Mortgaged Properties and the
proceeds thereof, in each case prior and superior in right to any other person, but subject to
Liens permitted by Section 6.02.




          (c) Upon the recordation of the IP Security Agreements with the United States Patent and
Trademark Office or the United States Copyright Office, as applicable, and the filing of the
financing statements referred to in paragraph (a) of this Section, the security interest created
under the Guarantee and Collateral Agreement shall constitute a fully perfected security interest
in all right, title and interest of the Loan Parties in the Intellectual Property (as defined in
the Guarantee and Collateral Agreement) in which a security interest may be perfected by filing in
the United States of America and its territories and possessions, in each case prior and superior
in right to any other person (it being understood that subsequent recordings in the United States
Patent and Trademark Office or the United States Copyright Office may be necessary to perfect a
security interest on registered trademarks and patents, trademark and patent applications and
registered copyrights acquired by the Loan Parties after the Effective Date).




          SECTION 3.20. Location of Real Property. (a) Upon delivery thereof on the Effective Date,
Schedule 3.20(a) will set forth, as of the Effective Date, a complete and correct list of all real
property owned in fee by Holdings or any Subsidiary and the legal description thereof. On the
Effective Date, the Borrower will own in fee all the real property set forth on Schedule 3.20(a).




          (b) Upon delivery thereof on the Effective Date, Schedule 3.20(b) will set forth, as of the
Effective Date, a complete and correct list of all real property leased by Holdings or any
Subsidiary and the legal description thereof. On the Effective Date, the Borrower will have valid
leasehold interests in all the real property set forth on Schedule 3.20(b).




          (c) Upon delivery thereof on the Effective Date, Schedule 3.20(c) will set forth, as of the
Effective Date and to the knowledge of Holdings and the Subsidiaries, a complete and correct list
of all pipeline rights of way and easements appurtenant.










 



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          SECTION 3.21. Labor Matters. There are no strikes, lockouts or slowdowns against Holdings or
any Subsidiary pending or, to the knowledge of Holdings or any Subsidiary, threatened. The hours
worked by and payments made to employees of Holdings and the Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable federal, state, local or foreign
law relating to such matters, except where such violation could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect. All payments due from
Holdings or any Subsidiary, or for which any claim may be made against Holdings or any Subsidiary,
on account of wages and employee health and welfare insurance and other benefits have been paid or
accrued as liabilities on the books of Holdings or such Subsidiary, except where the failure to do
so could not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. As of the Effective Date, neither Holdings nor any Subsidiary will be party to, or
otherwise bound by, any collective bargaining agreement.




          SECTION 3.22. Solvency. Immediately after the consummation of the Transactions to occur on
the Effective Date, including the making of each Loan and the application of the proceeds of such
Loans, and after giving effect to the rights of subrogation and contribution under the Guarantee
and Collateral Agreement, (a) the fair value of the assets of each Loan Party will exceed its debts
and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of the
assets of each Loan Party will be greater than the amount that will be required to pay the probable
liability on its debts and other liabilities, subordinated, contingent or otherwise, as such debts
and other liabilities become absolute and matured, (c) each Loan Party will be able to pay its
debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured, and (d) each Loan Party will not have unreasonably small capital with which
to conduct the business in which it is engaged, as such business is now conducted and is proposed
to be conducted following the date on which the Loans are made hereunder.




          SECTION 3.23. Concerning Holdings and the Borrower. Each of Holdings and the Borrower has
been formed solely for the purpose of engaging in the Transactions and, prior to the Effective
Date, will not have incurred liabilities (including Indebtedness) or obligations of any nature,
other than pursuant to or in connection with the Loan Documents, the Stock Purchase Agreement and
the Transactions.




          SECTION 3.24. Sanctioned Persons. None of Holdings, any Subsidiary or, to the knowledge of
Holdings or any Subsidiary, any director, officer, agent, employee or Affiliate of Holdings or any
Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”). The Borrower will not directly or indirectly use
the proceeds of the Loans, or otherwise make available such proceeds to any person, for the purpose
of financing the activities of any person currently subject to any U.S. sanctions administered by
OFAC.










 



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ARTICLE IV




Conditions




          The obligations of the Lenders to make Loans hereunder shall be subject to the satisfaction on
and as of the Effective Date (or waiver by the Required Lenders in accordance with Section 9.08) of
the following conditions:





     (a) The Administrative Agent shall have received from each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory
to the Administrative Agent (which may include a facsimile transmission) that such party
has signed a counterpart of this Agreement.




     (b) The Administrative Agent shall have received a favorable written opinion
(addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated the
Effective Date) of (i) Jones Day, counsel for Holdings and the Borrower, and (ii) local
counsel for Holdings and the Borrower in each jurisdiction where a Mortgaged Property is
located, in each case in form and substance reasonably satisfactory to the Administrative
Agent. Each of Holdings and the Borrower hereby requests such counsel to deliver such
opinion.




     (c) The Administrative Agent shall have received (i) a copy of the certificate or
articles of incorporation or other organizational documents, including all amendments
thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of each Loan Party as
of a recent date from such Secretary of State; (ii) a certificate of the Secretary or
Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that
attached thereto is a true and complete copy of the by-laws or comparable document of such
Loan Party as in effect on the Effective Date and at the time of adoption of the
resolutions described in clause (B) below, (B) that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors or other governing body of such
Loan Party authorizing the execution, delivery and performance of the Loan Documents to
which such Loan Party is a party and, in the case of the Borrower, the borrowing hereunder,
and that such resolutions have not been modified, rescinded or amended and are in full
force and effect, (C) that the certificate or articles of incorporation or other
organizational documents of such Loan Party have not been amended since the date of the
copy certified by the Secretary of State furnished pursuant to clause (i) above, and (D) as
to the incumbency and specimen signature of each officer executing any Loan Document or any
other document delivered in connection herewith on behalf of such Loan Party; (iii) a
certificate of another officer as to the incumbency and specimen signature of the Secretary
or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such
other documents as the Administrative Agent may reasonably request.









 



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     (d) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by a Responsible Officer of each of Holdings and the Borrower, confirming
the satisfaction of the conditions set forth in the first sentence of each of
paragraphs (l) and (m) and in paragraphs (e), (j), (k) (other than the final sentence
thereof), (n) (other than the final sentence thereof) and (q) of this Article.




     (e) At the time of and after giving effect to the Transactions to occur on the
Effective Date, (i) the representations and warranties of each Loan Party set forth in the
Loan Documents shall be true and correct in all material respects on and as of the
Effective Date with the same effect as though made on and as of such date, except in the
case of any such representation and warranty that expressly relates to a prior date, in
which case such representation and warranty shall be true and correct in all material
respects on and as of such prior date, and (ii) no Default or Event of Default shall have
occurred and be continuing.




     (f) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by a Responsible Officer of Parent, to the effect that (i) the Transactions
will not be in conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, give rise to any right to require any prepayment,
repurchase or redemption of any obligation under, or give rise to any right of, or result
in, any termination, cancellation, acceleration or right of renegotiation of any obligation
under, any indenture, credit agreement or other material agreement or instrument to which
Parent or any of its subsidiaries is a party or by which any of them or any of their assets
are or may be bound and (ii) each of Holdings and the Subsidiaries has been duly designated
as an “Unrestricted Subsidiary” under, and as defined in, the Existing Parent Term Credit
Agreement.




     (g) The Lenders shall have received, or been provided access to, (i) the audited and
unaudited financial statements and opinion referred to in Section 3.05 and (ii) such other
financial statements of the Acquired Company or the Krotz Springs Refining Business as
shall have been furnished by or on behalf of the Seller to Parent or any of its Affiliates.
The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by a Responsible Officer of each of Holdings and the Borrower, confirming
satisfaction of the condition precedent set forth in clause (ii) above.




     (h) The Administrative Agent shall have received a detailed business plan or
projections of the Borrower and its subsidiaries on a consolidated basis after giving
effect to the Transactions for the years 2008 through 2014 and for the eight quarters
beginning with the first quarter of 2008, in each case in form reasonably satisfactory to
the Administrative Agent.




     (i) Each of S&P and Moody’s shall have assigned a rating to the credit facility
provided for herein.









 



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     (j) Holdings shall have received cash proceeds of not less than $100,000,000 from the
Holdings Contribution. Holdings shall have transferred all such cash proceeds to the
Borrower as a contribution to the common equity of the Borrower.




     (k) All consents and approvals required to be obtained from any Governmental Authority
or other person in connection with the Acquisition and the other Transactions (including
the IDB Consents) shall have been obtained, and all applicable waiting periods and appeal
periods shall have expired, in each case without the imposition of any burdensome
condition, and there shall not be any pending or, to the knowledge of Holdings or the
Borrower, threatened actions, suits or proceedings by or before any Governmental Authority
that could reasonably be expected to restrain, prevent or impose burdensome conditions on
the Transactions. The Acquisition shall have been, or substantially concurrently with the
funding of the Loans shall be, consummated in accordance with applicable law and the Stock
Purchase Agreement (without giving effect to any amendments or other modifications of, or
waivers under, the Stock Purchase Agreement (including any deemed waiver under Section 6.10
thereof) that, individually or in the aggregate, are adverse to the Lenders in any material
respect and that have not been consented to by the Administrative Agent). The Merger shall
have been, or substantially concurrently with the funding of the Loans shall be,
consummated in accordance with applicable law, and the Administrative Agent shall have
received evidence thereof reasonably satisfactory to it. The Administrative Agent shall
have received a copy of the Stock Purchase Agreement and all certificates, opinions and
other documents delivered thereunder, certified by a Responsible Officer of each of
Holdings and the Borrower as being complete and correct.




     (l) The Borrower shall have entered into the Revolving Credit Agreement, which shall
provide, subject to the terms and conditions thereof, for revolving extensions of credit
thereunder in an aggregate principal amount of at least $400,000,000, and the conditions to
the obligations of the lenders thereunder to make loans and other extensions of credit on
the Effective Date shall have been, or substantially concurrently with the funding of the
Loans shall be, satisfied. The Administrative Agent shall have received a copy of the
Revolving Loan Documents, certified by a Responsible Officer of the Borrower as being
complete and correct, and the terms and conditions of the Revolving Loan Documents shall be
substantially consistent with the revolving facility term sheet furnished to the Lenders
prior to the Closing Date and otherwise reasonably satisfactory to the Administrative
Agent. The Administrative Agent shall have received from the Revolving Collateral Agent a
counterpart of the Intercreditor Agreement signed on behalf of the Revolving Collateral
Agent (or evidence satisfactory to the Administrative Agent (which may include facsimile
transmission) that the Revolving Collateral Agent has signed such a counterpart).




     (m) The Crack Spread Hedging Agreement shall have been, or substantially concurrently
with the funding of the Loans shall be, executed and









 



65



delivered by the parties thereto and shall be in full force and effect. The Crack
Spread Hedging Counterparty shall have, or substantially concurrently with the funding of
the Loans shall, receive the Crack Spread Hedging Cash Collateral. The Administrative
Agent shall have received a copy of the Crack Spread Hedging Agreement, certified by a
Responsible Officer of the Borrower as being complete and correct.




     (n) The Guarantee and Collateral Requirement shall be satisfied. The No-Offset
Agreement, in the form contemplated by the Stock Purchase Agreement, shall have been, or
substantially concurrently with the funding of the Loans shall be, executed and delivered
by the Seller and shall be in full force and effect. The Collateral Agent shall have
received a completed Perfection Certificate, dated the Effective Date and signed by a
Responsible Officer of each of Holdings and the Borrower, together with all attachments
contemplated thereby, including the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to Holdings and the Subsidiaries (and predecessors in
interest thereto, including the Acquired Company and the Seller) in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing statements (or
similar documents) disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements (or similar
documents) are permitted by Section 6.02 or have been, or substantially contemporaneously
with the funding of Loans on the Effective Date will be, released.




     (o) The Administrative Agent shall have received Schedules 3.08, 3.10, 3.18, 3.20(a),
3.20(b) and 3.20(c) referred to in Article III.




     (p) The Administrative Agent shall have received evidence that insurance required by
Section 5.02 is in effect, together with endorsements naming the Collateral Agent, for the
benefit of the Secured Parties, as loss payee thereunder and naming the Administrative
Agent, the Collateral Agent and the Lenders as additional insured, in each case to the
extent required by Section 5.02.




     (q) Immediately after giving effect to such Transactions, (i) no Subsidiary shall have
outstanding any Preferred Equity Interests, (ii) neither Holdings nor any Subsidiary shall
have any Indebtedness, other than (A) Indebtedness incurred under this Agreement,
(B) Indebtedness incurred under the Revolving Credit Agreement and (C) Indebtedness set
forth on Schedule 6.01, and (iii) the Borrower shall have no outstanding Equity Interests
other than common stock owned by Holdings and the Permitted Compensation Incentive Equity
Interests.




     (r) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the chief financial officer of Holdings, in form and substance
reasonably satisfactory to the Administrative Agent, certifying that Holdings and the
Subsidiaries, on a consolidated basis after giving effect to the Transactions, are solvent.









 



66



     (s) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced, payment or
reimbursement of all fees and expenses (including fees, charges and disbursements of
counsel) required to be paid or reimbursed by Holdings or the Subsidiaries under the
Commitment Letter, the Fee Letter or any Loan Document.




     (t) The Lenders shall have received, at least five Business Days prior to the
Effective Date, all documentation and other information required by bank regulatory
authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including Section 326 of the USA Patriot Act.


The Administrative Agent shall notify Holdings, the Borrower and the Lenders of the Effective Date,
and such notice shall be conclusive and binding.




ARTICLE V




Affirmative Covenants




          So long as this Agreement shall remain in effect and until the Commitments shall have
terminated and the principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under the Loan Documents shall have been paid in full, each of Holdings and the
Borrower covenants and agrees with the Lenders that, unless the Required Lenders shall otherwise
consent in writing:




          SECTION 5.01. Existence; Businesses and Properties. (a) Holdings and each Subsidiary will
do or cause to be done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except as otherwise expressly permitted under Section 6.05.




          (b) Holdings and each Subsidiary will do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect all rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names used in the conduct of
its business, except where the failure to do so could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; will use its commercially reasonable
efforts to maintain and operate its business in substantially the manner in which it is conducted
and operated on the Effective Date and will use the standard of care typical for the industry in
the maintenance and operation of its facilities; will comply in all respects with all applicable
laws, rules and regulations (including all Environmental Laws) and decrees and orders of any
Governmental Authority, whether now in effect or hereafter enacted, except where the failure to do
so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect; and will use its commercially reasonable efforts to maintain and preserve all property used
in the conduct of its business and keep such property in good repair, working order and condition
and from time to time make, or cause to be made, all needful and proper repairs, renewals,
additions, improvements and replacements thereto necessary in order that the business carried on in
connection










 



67



therewith may be properly conducted at all times, except where the failure to do so could not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.




          (c) Holdings and each Subsidiary will comply in all material respects with the terms and
provisions of all material leases and licenses relating to the Krotz Springs Refinery and all
material agreements relating to the Krotz Springs Refinery.




          SECTION 5.02. Insurance. (a) Holdings and the Subsidiaries, at their expense and with
financially sound and reputable insurers with a Best’s Key Rating Guide rating of “A-” or better
and a Best’s Insurance Guide and Key Ratings minimum size rating of “X” (or other insurers of
recognized responsibility satisfactory to the Administrative Agent and the Collateral Agent), will
maintain insurance adequately insuring their insurable properties at all times, and will maintain
or cause to be maintained such other insurance, to such extent and against such risks, as is
customary with companies in the same or similar businesses operating in the same or similar
locations or as required by law (including as to any Lender), but in any event containing limits
and coverage provisions set forth in Schedule 5.02 and otherwise complying with this Section.




          (b) Holdings and the Subsidiaries will cause all such policies in respect of property damage,
machinery breakdown and business interruption (i) to be endorsed or otherwise amended to include a
customary lender’s loss payable endorsement, in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent, which endorsement shall provide that, on and after
the Effective Date, all payments under such policies made or required to be made by the insurer
shall be paid directly to the Collateral Agent and the Revolving Collateral Agent, (ii) to provide
that none of Holdings, any Subsidiary, the Administrative Agent, the Collateral Agent, the
Arranger, any Lender or any other Secured Party shall be a coinsurer thereunder and (iii) to
contain such other provisions as the Administrative Agent or the Collateral Agent may reasonably
require from time to time to protect the interests of the Secured Parties.




          (c) Holdings and the Subsidiaries will cause all such policies, other than policies in
respect of workers’ compensation insurance, to name the Administrative Agent, the Collateral Agent
and the Lenders as additional insured, on forms reasonably satisfactory to the Administrative Agent
and the Collateral Agent.




          (d) Holdings and the Subsidiaries (i) will cause each such policy to provide that it shall
not be canceled or not renewed (A) by reason of nonpayment of premium upon not less than 10 days’
prior written notice thereof by the insurer to the Administrative Agent and the Collateral Agent
(giving the Administrative Agent and the Collateral Agent the right to cure defaults in the payment
of premiums) or (B) for any other reason upon not less than 45 days’ prior written notice thereof
by the insurer to the Administrative Agent and the Collateral Agent; and (ii) will deliver to the
Administrative Agent and the Collateral Agent, prior to the cancellation or nonrenewal of any such
policy, certificates of insurance evidencing the renewal or replacement of such policy,










 



68



together with evidence satisfactory to the Administrative Agent and the Collateral Agent of
payment of the premium therefor.




          (e) Holdings and the Subsidiary will further cause all such policies to contain the following
terms and conditions:





     (i) Each policy shall expressly provide that all provisions thereof, except the
liability limits (which shall be applicable to all insured parties as a group) and
liability for premiums (which shall be liabilities solely of Holdings or one or more of its
Affiliates) shall operate in the same manner as if there were a separate policy covering
each such insured party. All policies in respect of property damage, machinery breakdown
and business interruption shall include a customary non-vitiation clause reasonably
acceptable to the Administrative Agent and the Collateral Agent, which shall protect the
interest of the Administrative Agent, the Collateral Agent, the Lenders and the other
Secured Parties regardless of any breach or violation by Holdings, any Subsidiary or any
other Affiliate of Holdings of warranties, declarations or conditions contained in such
policies, any action or inaction of Holdings, any Subsidiary, any other Affiliate of
Holdings or any other person, or any foreclosure relating to the Krotz Springs Refinery or
any change in ownership of all or any portion of the Krotz Springs Refinery.




     (ii) Each policy (other than any workers’ compensation insurance) shall waive (A) any
subrogation right of the insurer as against the Administrative Agent, the Collateral Agent,
the Lenders and any other Secured Party and (B) any right of the insurers to any setoff or
counterclaim or any other deduction, whether by attachment or otherwise, in respect of any
liability of the Administrative Agent, the Collateral Agent, the Lenders, any other Secured
Party, Holdings or any Subsidiary.




     (iii) Each policy shall be primary and not excess to or contributing with any
insurance or self-insurance maintained by the Administrative Agent, the Collateral Agent,
the Lenders or any other Secured Party.



          (f) In the event that any such policy is written on a “claims-made” basis and such policy is
not renewed or the retroactive date of such policy is to be changed, Holdings and the Subsidiaries
will obtain for each such policy the broadest basic and supplemental extended reporting period or
“tail” coverage available thereunder (which coverage shall be for a minimum of five years) and will
provide to the Administrative Agent and the Collateral Agent evidence satisfactory to them that
such basic and supplemental extended reporting period or “tail” coverage has been obtained.




          (g) Upon request by the Administrative Agent or the Collateral Agent, Holdings and the
Borrower will promptly furnish to the Administrative Agent or the Collateral Agent, as the case may
be, copies of all insurance policies, binders and cover note or other evidence of insurance
required under this Section. Holdings and the Subsidiaries will provide to the Administrative
Agent and the Collateral Agent such further evidence as to the satisfaction of the requirements set
forth in this Section, and










 



69



will execute such further documents and instruments and take such further actions to cause the
requirements of this Section to be and remain satisfied at all times, as the Administrative Agent
or the Collateral Agent may reasonably request, all at the expense of the Loan Parties.




          (h) In the event that Holdings and the Subsidiaries at any time or times shall fail to obtain
or maintain any of the policies of insurance required to be maintained by them under this Section,
or to pay any premium in whole or in part relating thereto, the Collateral Agent may, without
limiting any obligations of Holdings and the Subsidiaries hereunder or waiving any Default or Event
of Default, in its sole discretion, obtain and maintain such policies of insurance and pay such
premium and take any other actions with respect thereto as the Collateral Agent deems advisable.
All sums disbursed by the Collateral Agent in connection with the exercise of its authority under
this paragraph, including reasonable fees, charges and other disbursements of counsel, court costs,
expenses and other charges relating thereto, shall be payable, upon demand, by Holdings and the
Borrower and shall constitute Secured Obligations.




          (i) Holdings and the Subsidiaries shall not be required to maintain any insurance policy
otherwise required to be maintained by them under this Section, or cause any such policy to contain
the terms (including minimum limits) specified in this Section, if and for so long as in the
judgment of the Administrative Agent such insurance policy, or such specified terms, are not
reasonably available or the cost thereof is excessive in view of the benefits to be obtained by the
Lenders therefrom. The Administrative Agent may grant extensions of time for the obtainment of the
insurance otherwise required to be maintained by Holdings and the Subsidiaries under this Section
if and for so long as in the judgment of the Administrative Agent such action cannot be
accomplished without undue effort or expense by the time or times at which it would otherwise be
required to be accomplished under this Section. In connection with any determination under this
paragraph, the Administrative Agent may consult with an independent insurance consultant selected
by it, all at the expense of the Loan Parties, and each Lender agrees that the Administrative Agent
shall not be liable for any action taken or not taken by it in accordance with the advice of any
such consultant.




          (j) No provision of this Section or any other provision of this Agreement or any other Loan
Document shall impose on the Administrative Agent or the Collateral Agent any duty or obligation to
ascertain or inquire into, or to verify the existence or adequacy of, the insurance coverage
maintained by or on behalf of Holdings or any Subsidiary, nor shall the Administrative Agent or the
Collateral Agent be responsible for any statement, representation or warranty made by or on behalf
of Holdings, any Subsidiary or any other Affiliate of Holdings to any insurance company or
underwriter.




          (k) Each of Holdings and the Borrower hereby irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as
Holdings’ or the Borrower’s, as the case may be, true and lawful agent (and attorney-in-fact) for
the purpose, after the occurrence and during the continuance of an Event of Default, of making,
settling and adjusting claims in respect of Collateral under policies of insurance, endorsing the
name of Holdings or the










 



70



Borrower, as the case may be, on any check, draft, instrument or other item of payment for the
proceeds of such policies and for making all determinations and decisions with respect thereto.




          SECTION 5.03. Obligations and Taxes. Holdings and each Subsidiary will pay its Indebtedness
and other obligations promptly and in accordance with their terms and will pay and discharge
promptly when due all Taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or otherwise that, if
unpaid, might give rise to a Lien upon such properties or any part thereof (other than any Lien
permitted by Section 6.02); provided, however, that such payment and discharge shall not be
required with respect to any such Tax, assessment, charge, levy or claim so long as the validity or
amount thereof shall be contested in good faith by appropriate proceedings and Holdings or any such
Subsidiary shall have set aside on its books adequate reserves with respect thereto in accordance
with GAAP and such contest operates to suspend collection of the contested obligation, Tax,
assessment or charge and enforcement of a Lien and, in the case of a Mortgaged Property, there is
no risk of forfeiture of such property.




          SECTION 5.04. Financial Statements, Reports, Etc. Holdings and the Borrower will furnish to
the Administrative Agent, for distribution, where applicable, to the Lenders:





     (a) within 90 days after the end of each fiscal year of the Borrower (or, in the case
of the fiscal year of the Borrower ending on December 31, 2008, within 120 days after the
end of such fiscal year), its consolidated balance sheet and related consolidated
statements of income, stockholders’ equity and cash flows, showing the financial condition
of the Borrower and its consolidated subsidiaries as of the close of such fiscal year and
the results of their operations and cash flows for such year, together with comparative
figures for the immediately preceding fiscal year, all audited by KPMG LLP or another
independent registered public accounting firm of recognized national standing that is
reasonably acceptable to the Administrative Agent and accompanied by an opinion of such
accounting firm (which shall not be subject to any “going concern” or like qualification or
exception or any qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements fairly present the financial condition and
results of operations and cash flows of the Borrower and its consolidated subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;




     (b) within 45 days after the end of each of the first three fiscal quarters
(commencing with the fiscal quarter ending on September 30, 2008) of each fiscal year of
the Borrower (or, in the case of the fiscal quarter of the Borrower ending on September 30,
2008, within 60 days after the end of such fiscal quarter), its consolidated balance sheet
and related consolidated statements of income and cash flows, showing the financial
condition of the Borrower and its consolidated subsidiaries as of the close of such fiscal
quarter and the results of their operations









 



71



and cash flows for such fiscal quarter and the then elapsed portion of the fiscal
year, and comparative figures for the same periods in the immediately preceding fiscal
year, all certified by a Financial Officer of the Borrower as fairly presenting the
financial condition and results of operations and cash flows of the Borrower and its
consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of certain footnotes;




     (c) concurrently with each delivery of financial statements under clause (a) or (b)
above, a completed Compliance Certificate signed by a Financial Officer of each of Holdings
and the Borrower, (i) certifying that no Default or Event of Default has occurred or, if a
Default or Event of Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections 5.12, 6.13, 6.14
and 6.15, (iii) stating whether any change in GAAP or in the application thereof has
occurred since the date of the consolidated balance sheet of the Borrower most recently
theretofore delivered under clause (a) or (b) above (or, prior to the first such delivery,
since December 31, 2007), to the extent such change is applicable to the financial
statements delivered under clause (a) or (b) above, and, if any such change has occurred,
specifying the effect of such change on the financial statements (including those for the
prior periods) accompanying such certificate, (iv) certifying that all notices required to
be provided under Sections 5.02, 5.09(b) and 5.10 have been provided and (v) in the case of
any delivery of financial statements under clause (a) above or under clause (b) above with
respect to the fiscal quarter of the Borrower ending on September 30, 2010 or any fiscal
quarter of the Borrower ending on June 30 of any year, setting forth reasonably detailed
calculations of the Excess Cash Flow for the Sweep Period ended on such date (and, if any
such Excess Cash Flow is to be Deferred Excess Cash Flow, reasonably detailed reasons
therefor);




     (d) within 90 days after the end of each fiscal year of the Borrower, a certificate of
a Responsible Officer of each of Holdings and the Borrower and, except where it is not
reasonably practical to obtain such a report, a report of an independent insurance broker,
signed by an officer of such broker, each setting forth the insurance then maintained by or
on behalf of Holdings and the Subsidiaries (identifying underwriters, carriers, the type of
insurance and the insurance limits) and stating that in their opinion such insurance
complies with the terms of Section 5.02, together with evidence of payment of the premiums
then due thereon;




     (e) within 90 days after the end of each fiscal year of the Borrower, a certificate of
a Responsible Officer of each of Holdings and the Borrower setting forth (i) all Equity
Interests, debt securities and promissory notes or any other instrument evidencing any such
debt securities owned by any Loan Party and (ii) all commercial tort claims in respect of
which a complaint or a counterclaim has been filed by any Loan Party and that, in each
case, (A) if so owned or filed









 



72



by a Loan Party as of the Closing Date would have been required to be set forth on the
applicable schedule to the Guarantee and Collateral Agreement pursuant to the terms of such
agreement and (B) have not been set forth on such applicable schedule or a certificate
previously delivered pursuant to this clause;




     (f) within 90 days after the commencement of each fiscal year of the Borrower, a
detailed consolidated budget for such fiscal year (including a projected consolidated
balance sheet and related projected statements of income and cash flows as of the end of
and for such fiscal year and setting forth the assumptions used for purposes of preparing
such budget) and, promptly after the same become available, any significant revisions to
such budget;




     (g) promptly after the receipt thereof by Holdings or any Subsidiary, a copy of any
“management letter” received in final form by any such person from its independent
registered public accounting firm and the management’s response thereto;




     (h) promptly after the receipt thereof by Holdings or any Subsidiary, copies of all
environmental audits and reports, whether prepared by personnel of Holdings or any
Subsidiary or by independent consultants, that relate to any material Environmental
Liability at or concerning the Krotz Springs Refinery or to any material Environmental
Liabilities of Holdings or any Subsidiary;




     (i) promptly after any request therefor by the Administrative Agent or any Lender,
copies of (i) any documents described in Section 101(k)(1) of ERISA that Holdings or any of
its ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any
notices described in Section 101(l)(1) of ERISA that Holdings or any of its ERISA
Affiliates may request with respect to any Multiemployer Plan; provided that if Holdings or
any of its ERISA Affiliates has not requested such documents or notices from the
administrator or sponsor of the applicable Multiemployer Plan, Holdings or the applicable
ERISA Affiliate shall promptly make a request for such documents and notices from such
administrator or sponsor and shall provide copies of such documents and notices promptly
after receipt thereof;




     (j) promptly after a request therefor, all documentation and other information that
any Lender reasonably requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and regulations, including
the USA Patriot Act; and




     (k) promptly after a request therefor, such other information regarding the business,
assets, liabilities, operations or condition (financial or otherwise) of Holdings or any
Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent
or any Lender may reasonably request.



          Information required to be furnished pursuant to this Section shall be deemed to have been
delivered if such information is posted by or on behalf of Holdings










 



73



on IntraLinks/IntraAgency or another similar website (whether a commercial or third party
website or a website sponsored by the Administrative Agent) to which each Lender and the
Administrative Agent have access; provided that (i) at the request of the Administrative Agent,
Holdings or the Borrower shall deliver to the Administrative Agent paper copies of any such
information and (ii) Holdings or the Borrower shall notify (which notification may be made by
facsimile or electronic mail) the Administrative Agent of the posting of any such information and
provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of
such documents. The Administrative Agent shall have no obligation to request the delivery of or to
maintain copies of any information referred to above, and in any event shall have no responsibility
to monitor compliance by Holdings or the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining copies of any such
information.




          SECTION 5.05. Litigation and Other Notices. Holdings and the Borrower will furnish to the
Administrative Agent prompt written notice of the following:





     (a) (i) the occurrence of any Default or Event of Default, including as a result of
the occurrence of any “default” or “event of default” (however denominated) under the
Revolving Credit Agreement or any other definitive documentation for the Permitted ABL
Facility (it being understood that, for purposes of this clause (i), any Event of Default
that refers to an opinion of the Required Lenders shall be deemed to instead refer to an
opinion of Holdings and the Borrower, acting reasonably); or (ii) Holdings or any
Subsidiary receiving from (A) any lender or agent under the Revolving Credit Agreement, or
any other definitive documentation for the Permitted ABL Facility, any notice alleging that
a “default” or “event of default” has occurred thereunder, (B) the Crack Spread Hedging
Counterparty, any notice alleging that a “default”, “event of default” or “termination
event” has occurred under the Crack Spread Hedging Agreement or (C) Valero Marketing and
Supply Company, or an Affiliated thereof, any notice alleging a default in the performance,
observance or fulfillment of any material obligation of the Borrower under the Offtake
Agreement;




     (b) the filing or commencement of, or Holdings or any Subsidiary obtaining any
knowledge of any threat or notice of intention of any person to file or commence, any
action, suit or proceeding, whether at law or in equity or by or before any Governmental
Authority, against Holdings or any Subsidiary or other Affiliate thereof that could
reasonably be expected to result in a Material Adverse Effect;




     (c) the Borrower or the Seller, or any of their respective Affiliates, having made any
claim for indemnification under the Stock Purchase Agreement;




     (d) (i) any Casualty with respect to any material portion of the Krotz Springs
Refinery or that would cost $10,000,000 or more to repair or replace and (ii) any
Condemnation with respect to any portion of the Krotz Springs Refinery;









 



74



     (e) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in a Material Adverse
Effect;




     (f) Holdings or any Subsidiary or other Affiliate thereof becoming subject to, or
receiving notice of any claim with respect to, any Environmental Liability that could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse
Effect; and




     (g) any other event, condition or development that has resulted in, or could
reasonably be expected to result in, a Material Adverse Effect.


Each notice delivered under this Section shall be accompanied by a statement of a Responsible
Officer of each of Holdings and the Borrower (i) in the case of any notice under clause (d) of this
Section, setting forth a description of (A) the Casualty with respect to which it is given and
their good faith estimate of the cost to repair or replace the assets affected by such Casualty or
(B) the Condemnation with respect to which it is given and the book value, and their good faith
estimate of the fair market value, of the property subject to such Condemnation and (ii) in the
case of any other notice, setting forth the details of the event, condition or development
requiring such notice and any action taken or proposed to be taken with respect thereto.




          SECTION 5.06. Maintaining Records; Access to Properties and Inspections; Maintenance of
Ratings. (a) Holdings and each Subsidiary will keep proper books of record and account in which
full, true and correct entries in conformity with GAAP and all requirements of law are made of all
dealings and transactions in relation to its business and activities. Holdings and each Subsidiary
will permit any representatives designated by the Administrative Agent or any Lender to visit and
inspect the financial records and the properties of such person during regular business hours upon
reasonable prior notice and as often as reasonably requested and to make extracts from and copies
of such financial records, and permit any representatives designated by the Administrative Agent or
any Lender to discuss the affairs, finances and condition of such person with the officers thereof
and independent accountants therefor.




          (b) Holdings and the Borrower will use commercially reasonable efforts to cause the credit
facility provided for herein to be continuously rated by S&P and Moody’s.




          SECTION 5.07. Use of Proceeds. The Borrower will use the proceeds of the Loans only for the
purposes specified in the recitals to this Agreement.




          SECTION 5.08. Senior Indebtedness Designation. In the event that Holdings or any Subsidiary
shall at any time issue or have outstanding any Indebtedness that by its terms is subordinated to
any other Indebtedness of Holdings or such Subsidiary, Holdings or such Subsidiary, as applicable,
will take all actions necessary to cause the Secured Obligations to constitute senior indebtedness
(however denominated) in respect of such subordinated Indebtedness and to enable the Lenders or an
agent on

















 





75



their behalf to exercise any payment blockage or other remedies available or potentially
available to lenders of senior indebtedness under the terms of such subordinated Indebtedness.
Without limiting the foregoing, the Secured Obligations are hereby designated as “senior
indebtedness” and, to the extent applicable, as “designated senior indebtedness” in respect of all
such subordinated Indebtedness and are further given all such other designations as shall be
required under the terms of any such subordinated Indebtedness in order that the Lenders or an
agent on their behalf may exercise any payment blockage or other remedies available or potentially
available to lenders of senior indebtedness under the terms of such subordinated Indebtedness.




          SECTION 5.09. Further Assurances; Collateral. (a) Holdings and each Subsidiary will execute
any and all further documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements, fixture filings,
mortgages, deeds of trust and other documents), that may be required under any applicable law, or
which the Administrative Agent or the Collateral Agent reasonably request, to cause the Guarantee
and Collateral Requirement to be and remain satisfied at all times, all at the expense of the Loan
Parties. Holdings and the Subsidiaries will use commercially reasonable efforts to obtain the
ExxonMobil Pipeline Consents as promptly as practicable after the Effective Date. Holdings and the
Subsidiaries will provide to the Collateral Agent, from time to time upon request, evidence
reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens
created or intended to be created by the Security Documents.




          (b) Holdings and the Borrower will furnish to the Administrative Agent and the Collateral
Agent prompt written notice of any change in (i) the legal name of any Loan Party, as set forth in
its organizational documents, (ii) the jurisdiction of organization or the form of organization of
any Loan Party (including as a result of any merger or consolidation), (iii) the location of the
chief executive office of any Loan Party or (iv) the organizational identification number, if any,
or, with respect to any Loan Party organized under the laws of a jurisdiction that requires such
information to be set forth on the face of a Uniform Commercial Code financing statement, the
Federal Taxpayer Identification Number of such Loan Party. Holdings and the Borrower agree not to
effect or permit any change referred to in the preceding sentence unless all filings have been
made (or are simultaneously made) under the Uniform Commercial Code or otherwise that are required
in order for the Collateral Agent to continue at all times following such change to have, and
Holdings and the Borrower agree to take all necessary action to ensure that the Collateral Agent
does continue at all times to have, a valid, legal and perfected security interest in all the
Collateral.




          SECTION 5.10. Additional Subsidiaries. If any Subsidiary is formed or acquired after the
Effective Date, Holdings and the Borrower will, as promptly as practicable, and in any event within
30 days (or such longer period as the Administrative Agent may agree to in writing), notify the
Administrative Agent and the Collateral Agent thereof and cause the Guarantee and Collateral
Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity
Interests in or Indebtedness of such Subsidiary owned by any Loan Party.










 



76


          SECTION 5.11. Crack Spread Hedging Agreement. The Borrower will maintain the Crack Spread
Hedging Agreement in effect for a period of not less than two years and three months following the
Closing Date.




          SECTION 5.12. Concerning Revolving Availability. Holdings and the Subsidiaries shall not
incur any Indebtedness under the Permitted ABL Facility if, at the time of or after giving effect
thereto, an ABL Availability Deficit shall occur and be continuing (it being agreed that, for
purposes of this paragraph, Indebtedness incurred by the Borrower under the Revolving Credit
Agreement in the form of “Protective Advances” thereunder made by the “Agent” thereunder in
accordance with the terms thereof (and not upon any request of the Borrower) shall not be deemed to
be incurred by the Borrower); provided that, notwithstanding the foregoing, the Borrower and its
subsidiaries may incur Indebtedness under the Permitted ABL Facility if (a) substantially
concurrently with the incurrence thereof, the proceeds thereof are applied to make any payment
required to be made under Section 2.06, 2.07, 2.11 or 2.22 or (b) such incurrence is determined by
the Borrower, in light of the circumstances then existing, to be reasonably necessary for the
continuation of the operation of its business in the ordinary course; provided further that, in the
event an ABL Availability Deficit shall have occurred, the Borrower shall use its commercially
reasonable efforts to eliminate such ABL Availability Deficit as promptly as practicable following
the occurrence thereof. At any time the Deferred Excess Cash Flow shall be greater than zero, the
Borrower shall use its commercially reasonable efforts to cause, as promptly as practicable, the
ABL Availability to exceed the ABL Availability Threshold by the amount of the Deferred Excess Cash
Flow.




ARTICLE VI




Negative Covenants




          So long as this Agreement shall remain in effect and until the Commitments shall have
terminated and the principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under the Loan Documents shall have been paid in full, each of Holdings and the
Borrower covenants and agrees with the Lenders that, unless the Required Lenders shall otherwise
consent in writing:




          SECTION 6.01. Indebtedness. Neither Holdings nor any Subsidiary will create, incur, assume or
permit to exist any Indebtedness, except:





     (a) Indebtedness created under the Loan Documents;




     (b) Indebtedness created under the Revolving Credit Agreement, or Refinancing
Indebtedness in respect thereof, in an aggregate principal amount not to exceed
$535,000,000 at any time outstanding (the “Permitted ABL Facility”); provided that the
availability of credit extensions thereunder shall be determined by reference to the
“borrowing base” of the Borrower and its subsidiaries;









 



77



     (c) Indebtedness set forth on Schedule 6.01, but not any extensions, renewals or
replacements of any such Indebtedness;




     (d) Indebtedness of the Borrower to any other Subsidiary and of any Subsidiary to the
Borrower or any other Subsidiary; provided that such Indebtedness shall not have been
transferred to any other person (other than the Borrower or any other Subsidiary);




     (e) Guarantees incurred in compliance with Section 6.04(f);




     (f) Indebtedness of the Borrower or any other Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets, including Capital
Lease Obligations and Synthetic Lease Obligations, and extensions, renewals or replacements
of any such Indebtedness that do not increase the outstanding principal amount thereof;
provided that (A) such Indebtedness is incurred prior to or within 180 days after such
acquisition or the completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this clause (f) shall not exceed $5,000,000
at any time outstanding;




     (g) Indebtedness of any person that becomes a subsidiary of the Borrower (or of any
person not previously a subsidiary of the Borrower that is merged or consolidated with or
into a subsidiary of the Borrower in a transaction permitted hereunder) after the date
hereof, or Indebtedness of any person that is assumed by any such subsidiary in connection
with an acquisition of assets by such subsidiary in a Permitted Acquisition; provided that
(i) such Indebtedness exists at the time such person becomes a subsidiary of the Borrower
(or is so merged or consolidated) or such assets are acquired and is not created in
contemplation of or in connection with such person becoming a subsidiary of the Borrower
(or such merger or consolidation) or such assets being acquired, (ii) the aggregate
principal amount of Indebtedness permitted by this clause (g) shall not exceed $5,000,000
at any time outstanding and (iii) neither Holdings nor any Subsidiary (other than such
person or the subsidiary of the Borrower with which such person is merged or consolidated
or that so assumes such person’s Indebtedness) shall Guarantee or otherwise become liable
for the payment of such Indebtedness;




     (h) Indebtedness owed in respect of any overdrafts and related liabilities arising
from treasury, depository and cash management services or in connection with any automated
clearing-house transfers of funds;




     (i) Indebtedness under performance, surety, statutory, insurance, appeal or similar
bonds or with respect to workers’ compensation claims, in each case incurred in the
ordinary course of business;




     (j) any Holdings Subordinated Loans;




     (k) the Crack Spread Hedging Support LC;









 



78



     (l) any Debt Service Support LC; and




     (m) other unsecured Indebtedness of the Borrower and the other Subsidiaries in an
aggregate principal amount not exceeding $5,000,000 at any time outstanding.



          SECTION 6.02. Liens. (a) Neither Holdings nor any Subsidiary will create, incur, assume or
permit to exist any Lien on any asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any thereof, except:





     (i) Liens created under the Loan Documents;




     (ii) Permitted Encumbrances;




     (iii) any Lien on any asset of Holdings or any Subsidiary (or of the Acquired Company
and its Affiliates) existing on the Closing Date and set forth on Schedule 6.02; provided
that (A) such Lien shall not apply to any other asset of Holdings or any Subsidiary and (B)
such Lien shall secure only those obligations that it secures on the Closing Date;




     (iv) Liens on fixed or capital assets acquired, constructed or improved by the
Borrower or any other Subsidiary; provided that (A) such Liens secure Indebtedness
permitted by Section 6.01(f), (B) such Liens and the Indebtedness secured thereby are
incurred prior to or within 180 days after such acquisition or the completion of such
construction or improvement, (C) the Indebtedness secured thereby does not exceed the cost
of acquiring, constructing or improving such fixed or capital assets and (D) such Liens
shall not apply to any other asset of Holdings or any Subsidiary;




     (v) any Lien existing on any asset prior to the acquisition thereof by the Borrower or
any of its subsidiaries or existing on any asset of any person that becomes a Subsidiary
after the date hereof prior to the time such person becomes a Subsidiary; provided that
(A) such Lien is not created in contemplation of or in connection with such acquisition or
such person becoming a Subsidiary, as the case may be, (B) such Lien shall not apply to any
other asset of Holdings or any Subsidiary and (C) such Lien shall secure only those
obligations that it secures on the date of such acquisition or the date such person becomes
a Subsidiary, as the case may be;




     (vi) Liens created under the Revolving Loan Documents or any other definitive
documentation for the Permitted ABL Facility; provided that (A) such Liens secure only
Indebtedness permitted by Section 6.01(b) and other obligations not constituting
Indebtedness that are secured thereunder, (B) such Liens do not apply to any asset of
Holdings or any Subsidiary other than assets that constitute Collateral and that are
subject to a Lien granted under a Security Document to secure the Secured Obligations and
(C) such Liens are subject to the terms of the Intercreditor Agreement;









 



79



     (vii) Liens on the Crack Spread Hedging Cash Collateral to secure obligations of the
Borrower under the Crack Spread Hedging Agreement or the Crack Spread Hedging Support LC;
provided that the aggregate principal amount of the Crack Spread Hedging Cash Collateral
subject to the Liens permitted by this clause (vii) shall not exceed $50,000,000;




     (viii) Liens on the Debt Service Support LC Cash Collateral to secure obligations of
the Borrower under any Debt Service Support LC; provided that the aggregate amount of the
Debt Service Support LC Cash Collateral subject to the Liens permitted by this clause
(viii) shall not, at any time, exceed 105% of the face amount of the Debt Service Support
LC in effect at such time; and




     (ix) other Liens securing Indebtedness or other obligations in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding.



          (b) Notwithstanding anything herein to the contrary, neither Holdings nor any Subsidiary will
create, incur, assume or permit to exist any consensual Lien on any asset now owned or hereafter
acquired by it to secure the obligations of the Borrower under the Earnout Agreement.




          SECTION 6.03. Sale/Leaseback Transactions. Neither Holdings nor any Subsidiary will enter
into any Sale/Leaseback Transaction.




          SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. Neither Holdings nor
any Subsidiary will purchase, hold, acquire (including pursuant to any merger or consolidation with
any person that was not a wholly owned Subsidiary prior thereto), make or otherwise permit to exist
any Investment in any other person, or purchase or otherwise acquire (in one transaction or a
series of transactions) (x) all or substantially all the assets of any other person or of a
business unit, division, product line or line of business of any other person, or (y) other assets
acquired other than in the ordinary course of business that, following the acquisition thereof,
would constitute a substantial portion of the assets of Holdings and the Subsidiaries, taken as a
whole, except:





     (a) the Acquisition;




     (b) Permitted Investments;




     (c) Investments existing on the Effective Date and set forth on Schedule 6.04 (but not
any additions thereto (including any capital contributions) made after the Effective Date);




     (d) Investments by Holdings in the Equity Interests of the Borrower and Investments by
the Borrower and the other Subsidiaries in the Equity Interests of their respective
subsidiaries; provided that (i) such subsidiaries are Subsidiaries prior to such
investments and (ii) any such Equity Interests held by a Loan Party shall be pledged
pursuant to the Guarantee and Collateral Agreement;









 



80



     (e) loans or advances made by the Borrower or any other Subsidiary to any Subsidiary;
provided that the Indebtedness resulting therefrom is permitted by Section 6.01(d);




     (f) Guarantees by Holdings or any Subsidiary of Indebtedness or other obligations of
Holdings or any Subsidiary; provided that (i) a Subsidiary that has not Guaranteed the
Secured Obligations pursuant to the Guarantee and Collateral Agreement shall not Guarantee
any Indebtedness or other obligations under or pursuant to the Permitted ABL Facility, (ii)
Holdings shall not Guarantee any Indebtedness or other obligations of any Subsidiary except
for any such Guarantees under the Loan Documents or under the definitive documentation for
the Permitted ABL Facility and (iii) no Subsidiary shall Guarantee any Indebtedness or
other obligation of Holdings except for any such Guarantees under the Loan Documents or
under the definitive documentation for the Permitted ABL Facility;




     (g) Investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;




     (h) Investments made as a result of the receipt of noncash consideration from a sale,
transfer, lease or other disposition of any asset in compliance with Section 6.06;




     (i) Investments in the form of Hedging Agreements permitted by Section 6.07;




     (j) payroll, travel and similar advances to directors and employees of Holdings or any
Subsidiary to cover matters that are expected at the time of such advances to be treated as
expenses for accounting purposes and that are made in the ordinary course of business;




     (k) loans or advances to directors and employees of Holdings or any Subsidiary made in
the ordinary course of business; provided that the aggregate amount of such loans and
advances outstanding at any time shall not exceed $100,000;




     (l) purchases of crude oil and other inventory, supplies and materials in the ordinary
course of business;




     (m) other Investments and Permitted Acquisitions; provided that, at the time each such
Investment or Permitted Acquisition is purchased, made or otherwise acquired, (i) no
Default, Event of Default, ABL Availability Deficit or Debt Service Reserve Deficit shall
have occurred and be continuing or would result therefrom, (ii) the Deferred Excess Cash
Flow is not greater than zero and (iii) the amount of such Investment, or the aggregate
consideration and other amounts paid in connection with such Permitted Acquisition, shall
not exceed the









 



81



Retained Amount at the time of the making of such Investment or Permitted Acquisition;
and




     (n) other Investments and Permitted Acquisitions; provided that, at the time each such
Investment or acquisition is purchased, made or otherwise acquired, (i) no Default, Event
of Default, ABL Availability Deficit or Debt Service Reserve Deficit shall have occurred
and be continuing or would result therefrom, (ii) the Deferred Excess Cash Flow is not
greater than zero and (iii) the amount of such Investment, or the aggregate consideration
and other amounts paid in connection with such Permitted Acquisition, together with the
aggregate amount, determined as of such time, of all other Investments purchased, made or
otherwise acquired, and the aggregate amount of all consideration and such other amounts
paid in connection with all other Permitted Acquisitions made, in reliance on this clause
(n) shall not exceed $5,000,000 in the aggregate.



          SECTION 6.05. Mergers, Consolidations and Other Fundamental Changes. Neither Holdings nor any
Subsidiary will merge into or consolidate with any other person, or permit any other person to
merge into or consolidate with it, or liquidate or dissolve, except that (a) the Borrower may
consummate the Merger and (b) if, at the time thereof and immediately after giving effect thereto
no Default or Event of Default shall have occurred and be continuing, (i) any Subsidiary may merge
into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary (other than the Borrower) may merge into or consolidate with any other Subsidiary (other
than the Borrower) in a transaction in which the surviving entity is a Subsidiary and (iii) any
Subsidiary (other than the Borrower) that is an Inactive Subsidiary may liquidate or dissolve if
the Borrower determines in good faith that such liquidation or dissolution is in the best interests
of the Borrower and is not adverse to the interests of the Lenders.




          SECTION 6.06. Asset Sales. Neither Holdings nor any Subsidiary will sell, transfer, lease or
otherwise dispose of (it being understood that a Casualty to, or a Condemnation of, any asset shall
not be deemed to be a disposition thereof) any asset, including any Equity Interest owned by it,
nor will any Subsidiary issue any additional Equity Interest in such Subsidiary (other than to
Holdings or any other Subsidiary in compliance with Sections 6.04 and 6.10), except:





     (a) sales, transfers and other dispositions of inventory, obsolete, worn-out or
surplus equipment, cash and Permitted Investments in the ordinary course of business;




     (b) sales, transfers and other dispositions to the Borrower or any other Subsidiary;




     (c) issuances and sales by the Borrower of its common stock to management or employees
of the Borrower or any of its subsidiaries under any employee stock option or stock
purchase plan or employee benefit plan (the common stock so issued and sold in compliance
with this clause (c) being referred to as the “Permitted Compensation Incentive Equity
Interests”); provided that









 



82



the Permitted Compensation Incentive Equity Interests (i) shall have no voting rights
and (ii) shall not, at any time, represent more than 5.0% of aggregate equity value
represented by the issued and outstanding common stock of the Borrower; and




     (d) sales, transfers and other dispositions of assets (other than Equity Interests in
any Subsidiary) that are not permitted by any other clause of this Section; provided that
(i) the aggregate fair market value of all assets sold, transferred or otherwise disposed
of in reliance on this clause shall not exceed $5,000,000 in the aggregate and (ii) all
sales, transfers and other dispositions made in reliance on this clause shall be made for
fair value and at least 75% cash consideration.



          SECTION 6.07. Hedging Agreements. (a) Neither Holdings nor any Subsidiary will enter into
any Hedging Agreement except (i) the Crack Spread Hedging Agreement, (ii) Hedging Agreements
entered into to hedge or mitigate risks to which Holdings or any Subsidiary has actual exposure
(other than in respect of Indebtedness of Holdings or any Subsidiary) and not for speculative
purposes and (iii) Hedging Agreements entered into in order to effectively cap, collar or exchange
interest rates (from fixed to floating rates, from one floating rate to another floating rate or
otherwise) with respect to any interest-bearing liability or investment of Holdings or any
Subsidiary and not for speculative purposes.




          (a) During the term (including any extensions thereof) of the Crack Spread Hedging Agreement,
neither Holdings nor any Subsidiary will enter into any Hedging Agreement or other arrangement with
any person the economic effect of which, in respect of the Borrower, is opposite to the economic
effect of the Crack Spread Hedging Agreement.




          (b) Neither Holdings nor any Subsidiary shall enter into any Hedging Agreement (other than,
for the avoidance of doubt, the Crack Spread Hedging Agreement) the obligations under which would
constitute Secured Obligations if, as a result thereof, the Capped Term Obligations (as defined in
the Intercreditor Agreement) would exceed the Term Credit Cap Amount (as defined in the
Intercreditor Agreement), and, notwithstanding anything to the contrary in the Guarantee and
Collateral Agreement or any other Security Document, obligations under any Hedging Agreement that
shall have been entered into in violation of this paragraph shall not, to the extent such
obligations would otherwise result in the existence of any Term Credit Excess Amounts (as defined
in the Intercreditor Agreement), be deemed to constitute Secured Obligations for all purposes of
the Guarantee and Collateral Agreement and the other Security Documents.




          SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness; Payments under the
Earnout Agreement. (a) Neither Holdings nor any Subsidiary will declare or make, or agree to pay
or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except that (i) any Subsidiary (other than the Borrower) may declare and pay
dividends or make









 



83


other distributions with respect to its capital stock, partnership or membership interests or
other similar Equity Interests, ratably to the holders of such Equity Interests; (ii) the Borrower
may make Restricted Payments (including through redemption or repurchase of such Equity Interests)
on account of Permitted Compensation Incentive Equity Interests, in an amount not exceeding
$2,000,000 in the aggregate for any fiscal year, as such amount may be increased pursuant to the
immediately following proviso (the “Annual Compensation Incentive Amount”), pursuant to and in
accordance with employee stock option or stock purchase plan or employee benefit plan for
management or employees of the Borrower or any of its subsidiaries; provided that, to the extent
the Annual Compensation Incentive Amount for any fiscal year exceeds the aggregate amount of
Restricted Payments made under this clause (ii) during such fiscal year, the Annual Compensation
Incentive Amount for the immediately succeeding fiscal year shall be increased by the amount of
such excess; provided further, however, that the amount of Restricted Payments made under this
clause (ii) shall not exceed $7,000,000 in the aggregate since the Closing Date; (iii) so long as
no Default, Event of Default or Debt Service Reserve Deficit shall have occurred and be continuing
or would result therefrom, (A) the Borrower may make payments in cash to Holdings on account of
Parent’s corporate expense allocation to Holdings and the Subsidiaries, the amount of such payments
not to exceed (1) $17,500,000 in the aggregate for the period from the Effective Date to June 30,
2009, (2) $17,500,000 in the aggregate for the period from July 1, 2009 to June 30, 2010 and (3)
$7,000,000 in the aggregate for each period of 12 consecutive months commencing on July 1 of any
year (beginning with July 1, 2010) and ending on June 30 of the immediately following year (with
the Borrower hereby agreeing to provide to the Administrative Agent, upon request, reasonable
detail as to such corporate expense allocation), and (B) Holdings may make payments to Parent and
its Affiliates in cash in an aggregate amount not exceeding the aggregate amount of the payments
received by Holdings from the Borrower pursuant to the foregoing clause (A); and (iv) so long as no
Default, Event of Default, ABL Availability Deficit or Debt Service Reserve Deficit shall have
occurred and be continuing or would result therefrom, and so long as the Deferred Excess Cash Flow
is not greater than zero, (A) the Borrower may declare, make or pay Restricted Payments in cash to
Holdings in an amount not exceeding the Retained Amount at such time and (B) Holdings may declare,
make or pay Restricted Payments in cash in an aggregate amount not exceeding the aggregate amount
of dividends received by Holdings from the Borrower pursuant to the foregoing clause (A).




          (b) Neither Holdings nor any Subsidiary will make or agree to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities or other property) of or
in respect of principal of or interest on any Indebtedness, or any payment or other distribution
(whether in cash, securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or termination of any
Indebtedness, except:





          (i) payments of or in respect of Indebtedness created under the Loan Documents;









 



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     (ii) regularly scheduled interest and principal payments as and when due in respect of
any Indebtedness, other than (A) payments in respect of Holdings Subordinated Loans and
(B) payments in respect of the Permitted ABL Facility;




     (iii) interest and principal payments in respect of Indebtedness incurred under the
Permitted ABL Facility, to the extent not prohibited by the Intercreditor Agreement;




     (iv) so long as no Default, Event of Default, ABL Availability Deficit or Debt Service
Reserve Deficit shall have occurred and be continuing or would result therefrom, and so
long as the Deferred Excess Cash Flow amount is not greater than zero, interest and
principal payments in respect of Holdings Subordinated Loans in an amount not exceeding at
the time of making thereof the Retained Amount at such time, to the extent not prohibited
by the Holdings Subordination Agreement;




     (v) refinancings of Indebtedness to the extent permitted by Section 6.01; and




     (vi) payments of secured Indebtedness (other than Indebtedness incurred under the
Permitted ABL Facility) that becomes due as a result of the voluntary sale or transfer of
the assets securing such Indebtedness in transactions permitted hereunder.



          (c) Notwithstanding anything herein to the contrary, neither Holdings nor any Subsidiary will
make any payments to the Seller or any of its Affiliates in respect of the obligations owed under
the Earnout Agreement unless, at the time of and immediately after giving effect to such payment,
no Default or Event of Default shall have occurred and be continuing or would result therefrom.




          SECTION 6.09. Transactions with Affiliates. (a) Neither Holdings nor any Subsidiary will
sell, lease, license or otherwise transfer any assets to, or purchase, lease, license or otherwise
acquire any assets from, or otherwise engage in any other transactions with, any of its Affiliates
(including Parent), except (i) transactions in the ordinary course of business that (A) are at
prices and on terms and conditions not less favorable to Holdings or such Subsidiary than those
that would prevail in arm’s-length transactions with unrelated third parties and (B) do not involve
payments by Holdings or such Subsidiary (excluding payments for purchases or other acquisitions of
crude oil and reimbursements of costs and expenses (such as payroll) incurred by Parent or its
subsidiaries on behalf of Holdings or such Subsidiary (but excluding corporate allocation
expenses)) exceeding $5,000,000 in the aggregate during any fiscal year, (ii) transactions between
or among the Subsidiaries not involving any other Affiliate, (iii) any Restricted Payment permitted
by Section 6.08, (iv) compensation and indemnification of, and other employment arrangements with,
directors, officers and employees of Holdings or any Subsidiary entered in the ordinary course of
business, (v) Investment permitted under Section 6.04(d) and (vi) loans and advances permitted
under Sections 6.04(j) and 6.04(k).










 



85


          (b) Neither Holdings nor any Subsidiary will permit Parent or any of its Affiliates (other
than Holdings and the Subsidiaries) to own or hold any material asset or Governmental Approval that
is necessary for the ownership of the Krotz Springs Refinery and the operation thereof
substantially in the manner as conducted on the Effective Date.




          SECTION 6.10. Business of Holdings and Subsidiaries. (a) Notwithstanding anything herein to
the contrary, Holdings (i) will not engage in any business or activity other than the ownership of
the outstanding Equity Interests in the Borrower and activities incidental thereto and (ii) will
not own or acquire any assets (other than Equity Interests in the Borrower, cash and Permitted
Investments) or incur any liabilities (other than Indebtedness permitted to be incurred by it under
Section 6.01, liabilities imposed by law, including liabilities in respect of Taxes, and other
liabilities incidental to its existence and permitted business and activities).




          (b) Neither the Borrower nor any other Subsidiary will engage at any time in any business or
activity other than the ownership and operation of the Krotz Springs Refinery and activities
directly related or incidental thereto.




          SECTION 6.11. Restrictive Agreements. Neither Holdings nor any Subsidiary will, directly or
indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition on (a) the ability of Holdings or any Subsidiary to create,
incur or permit to exist any Lien on any of its assets to secure any Secured Obligations or (b) the
ability of any Subsidiary (other than the Borrower) to pay dividends or other distributions with
respect to its Equity Interests or to make or repay loans or advances to the Borrower or any other
Domestic Subsidiary or the ability of Holdings or any Domestic Subsidiary to Guarantee the Secured
Obligations; provided that (i) the foregoing shall not apply to (A) restrictions and conditions
imposed by law or by any Loan Document and (B) restrictions and conditions imposed by the Revolving
Loan Documents, as such restrictions and conditions are in effect on the date hereof, or by the
Intercreditor Agreement; and (ii) clause (a) of the foregoing shall not apply to (A) restrictions
or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement
(other than the Permitted ABL Facility) if such restrictions or conditions apply only to the assets
securing such Indebtedness or (B) customary provisions in leases and other agreements restricting
the assignment thereof.




          SECTION 6.12. Amendment of Material Documents. Neither Holdings nor any Subsidiary will
(a)(i) amend, restate, supplement or otherwise modify its certificate of incorporation, bylaws or
other organizational documents or (ii) amend, restate, supplement or otherwise modify, or waive any
of its rights under, or terminate prior to the stated termination thereof or release, the Crack
Spread Hedging Agreement or the Offtake Agreement, in each case to the extent any of the foregoing
could reasonably be expected to be adverse in any material respect to Holdings and the Subsidiaries
or to the interests of the Lenders, or (b) amend, restate, supplement or otherwise modify any
Revolving Loan Document or any other definitive documentation for the Permitted ABL Facility, to
the extent any of the foregoing, could reasonably be expected to materially impair (i) the rights
of or benefits available to the Lenders under any Loan Document in










 



86


respect of any payment obligation of any Loan Party thereunder or (ii) the ability of any Loan
Party to perform any of its obligations under any Loan Document (it being agreed that this clause
(b) shall not be deemed to restrict amendments, if any, made to the Revolving Credit Agreement
pursuant to the exercise of “flex” rights in respect thereof, as and to the extent such rights are
in effect on the date hereof).



          SECTION 6.13. Debt Service Coverage Ratio. The Borrower will not permit the ratio of (a) Cash
Available for Debt Service to (b) Debt Service Payments, in each case for any period of four
consecutive fiscal quarters ending on any date during any period set forth below, to be less than
the ratio set forth below opposite such period:




	 	 	 
	Period
	 	Ratio
	From the Effective Date through December 31, 2011

	 	1.50 to 1.00
	 
	 	 
	From March 31, 2012 through the Maturity Date

	 	1.75 to 1.00






          SECTION 6.14. Leverage Ratio. The Borrower will not permit the Leverage Ratio at any time
during any period set forth below to exceed the ratio set forth opposite such period:




	 	 	 
	Period
	 	Ratio
	From the Effective Date through September 30, 2009

	 	1.75 to 1.00
	 
	 	 
	From October 1, 2009 through March 31, 2010

	 	1.25 to 1.00
	 
	 	 
	From April 1, 2010 through the Maturity Date

	 	1.00 to 1.00






          SECTION 6.15. Capital Expenditures. Neither Holdings nor any Subsidiary will make any Capital
Expenditures; provided that the Borrower and its subsidiaries may make (a) maintenance Capital
Expenditures made (i) during the period from the Effective Date to December 31, 2008, not exceeding
$10,000,000 in the aggregate and (ii) during any fiscal year of the Borrower ending after December
31, 2008, not exceeding $17,500,000 in the aggregate in any such fiscal year, and (b) turnaround
Capital Expenditures made (i) during the fiscal year of the Borrower ending on December 31, 2009,
not exceeding $22,500,000 in the aggregate and (ii) during the period from October 1, 2012 to March
31, 2014, not exceeding $26,500,000 in the aggregate; provided further that, notwithstanding the
foregoing, the Borrower and its subsidiaries may make, in addition to the foregoing, any Capital
Expenditure if (A) at the time of the making thereof, (1) no Default, Event of Default, ABL
Availability Deficit or Debt Service Reserve Deficit shall have occurred and be continuing or would
result therefrom and (2) the Deferred Excess Cash Flow amount is not greater than zero, and (B) the
amount of such Capital Expenditure shall not exceed the Retained Amount at the time of the making
thereof.




          SECTION 6.16. Fiscal Year. Neither Holdings nor any Subsidiary will change its fiscal
year-end to a date other than December 31.










 



87


          SECTION 6.17. Preferred Equity Interests. Neither Holdings nor any Subsidiary will issue any
Preferred Equity Interests; provided that Holdings may issue Preferred Equity Interests that are
not Disqualified Equity Interests.




          SECTION 6.18. No Foreign Subsidiaries. Neither Holdings nor any Subsidiary will acquire,
establish or permit to exist any Subsidiary that is a Foreign Subsidiary.




ARTICLE VII




Events of Default




          In case of the happening of any of the following events (“Events of Default”):





     (a) any representation or warranty made or deemed made in or in connection with any
Loan Document or the borrowings hereunder, or any representation, warranty, statement or
information contained in any report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or furnished;




     (b) default shall be made in the payment of any principal of any Loan when and as the
same shall become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or by acceleration thereof or otherwise;




     (c) default shall be made in the payment of any interest on any Loan or any Fee or any
other amount (other than an amount referred to in clause (b) above) due under any Loan
Document, when and as the same shall become due and payable, and such default shall
continue unremedied for a period of three Business Days;




     (d) default shall be made in the due observance or performance by Holdings or any
Subsidiary of any covenant, condition or agreement contained in Section 5.01(a) (with
respect to Holdings and the Borrower only), 5.02(a), 5.02(b)(i), 5.02(c), 5.05, 5.07 or
5.12 or in Article VI;




     (e) default shall be made in the due observance or performance by Holdings or any
Subsidiary of any covenant, condition or agreement contained in any Loan Document (other
than those specified in clause (b), (c) or (d) above) and such default shall continue
unremedied for a period of 30 days after notice thereof from the Administrative Agent or
any Lender to the Borrower (with a copy to the Administrative Agent in the case of any such
notice from a Lender);




     (f) (i) Holdings or any Subsidiary shall fail to pay any principal or interest in
respect of any Material Indebtedness, when and as the same shall become due and payable, or
(ii) any other event or condition shall occur that results in any









 



88



Material Indebtedness becoming due prior to its scheduled maturity or that would
enable or permit (with or without the giving of notice, the lapse of time or both) the
holder or holders of any such Material Indebtedness or any trustee or agent on its or their
behalf or, in the case of any Hedging Agreement, the applicable counterparty, to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase, redemption
or defeasance thereof, prior to its scheduled maturity or, in the case of any Hedging
Agreement, to cause the termination thereof; provided that (A) this clause (ii) shall not
apply to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness and (B) in the case of any
such failure, event or condition referred to in clauses (i) and (ii), such failure, event
or condition shall not have been waived in accordance with the terms of such Material
Indebtedness and shall continue beyond any grace period applicable thereto under the terms
of such Material Indebtedness or, in the case of any such failure, event or condition
relating to the Crack Spread Hedging Agreement, such failure, event or condition shall
continue unremedied for a period of 30 days;




     (g) any Governmental Approval required for the ownership of the Krotz Springs
Refinery, or the operation thereof in substantially the same manner as operated on the
Effective Date, shall have been revoked, terminated or withdrawn or shall have ceased to be
in full force and effect (including as a result of a failure to renew), and such
revocation, termination, withdrawal or cessation has continued unremedied for a period of
30 days and, in the opinion of the Required Lenders, could reasonably be expected to result
in a Material Adverse Effect;




     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of Holdings or any
Subsidiary, or of a substantial part of the property or assets of Holdings or any
Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings or any Subsidiary or for a substantial part of
the property or assets of Holdings or any Subsidiary or (iii) the winding-up, liquidation
or dissolution of Holdings or any Subsidiary (other than an Inactive Subsidiary); and such
proceeding or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;




     (i) Holdings or any Subsidiary shall (i) voluntarily commence any proceeding or file
any petition seeking relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any petition described in
clause (h) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings or any Subsidiary or
for a substantial part of the property or assets of Holdings or any Subsidiary, (iv) file
an answer









 



89



admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;




     (j) one or more judgments for the payment of money in an aggregate amount in excess of
$5,000,000 (net of all amounts as to which any insurance company or other indemnifying
party (other than Holdings, the Borrower or any other Affiliate of Holdings, and provided
that such other indemnifying party is, in the opinion of the Required Lenders, financially
sound) has acknowledged liability) shall be rendered against Holdings or any Subsidiary or
any combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to levy upon assets or properties of Holdings
or any Subsidiary to enforce any such judgment;




     (k) one or more judgments for injunctive relief shall be rendered against Holdings or
any Subsidiary or any combination thereof that, in the opinion of the Required Lenders,
could reasonably be expected to result in a Material Adverse Effect;




     (l) one or more ERISA Events shall have occurred that, in the opinion of the Required
Lenders, could reasonably be expected to result in a Material Adverse Effect;




     (m) any Guarantee under the Guarantee and Collateral Agreement for any reason shall
cease to be in full force and effect (other than in accordance with its terms), or any Loan
Party shall assert that it has any further liability under any such Guarantee (other than
as a result of the discharge of such Loan Party in accordance with the terms of the Loan
Documents);




     (n) any security interest purported to be created by any Security Document shall cease
to be, or shall be asserted by any Loan Party not to be, a valid, perfected, first priority
(except as otherwise expressly provided in this Agreement, the Intercreditor Agreement or
such Security Document) security interest in any material Collateral, except (i) as a
result of a sale or transfer of the applicable Collateral in a transaction permitted under
the Loan Documents or (ii) to the extent that any such loss of perfection or priority
results from the failure of the Collateral Agent to maintain possession of certificates
representing securities pledged under the Guarantee and Collateral Agreement;




     (o) the Intercreditor Agreement for any reason shall cease to be, or shall be asserted
by Holdings or any Subsidiary, not to be, binding on or enforceable against any such party
(or on or against any person on whose behalf the Revolving Collateral Agent makes any
covenant or agreement therein), other than in accordance with its terms;









 



90



     (p) there shall have occurred any event or condition adversely affecting the ability
of the Borrower and its subsidiaries to access (i) any ExxonMobil Pipeline for the purpose
of obtaining delivery of crude oil to the Krotz Springs Refinery or (ii) the Colonial
Pipeline for the purpose of transporting refined products from the Krotz Springs Refinery,
in each case that, in the opinion of the Required Lenders (taking into consideration the
alternative arrangements available to the Borrower and its subsidiaries with respect to
delivery of crude oil to and transport of refined products from the Krotz Springs
Refinery), could reasonably be expected to result in a Material Adverse Effect; or




     (q) (i) any person other than Parent, or one or more wholly owned subsidiaries of
Parent (or, in respect of such Preferred Equity Interests, any other Affiliate of Parent),
shall acquire ownership of any common Equity Interests or any Preferred Equity Interests in
Holdings or (ii) any person other than Holdings shall acquire ownership of any Equity
Interests (other than Permitted Incentive Compensation Equity Interests) in the Borrower;


then, and in every such event (other than an event with respect to Holdings or the Borrower
described in clause (h) or (i) above), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to
Holdings and the Borrower, take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, whereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued interest thereon
and any unpaid accrued fees and all other liabilities of Holdings or the Borrower accrued hereunder
and under any other Loan Document, shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby expressly waived by
Holdings and the Borrower, anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event with respect to Holdings and the Borrower described in
paragraph (h) or (i) above, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and any unpaid accrued fees and all
other liabilities of Holdings or the Borrower accrued hereunder and under any other Loan Document,
shall automatically become due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by Holdings and the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding.




ARTICLE VIII




The Administrative Agent and the Collateral Agent




          Each of the Lenders hereby irrevocably appoints the entity named as the Administrative Agent
and the Collateral Agent in the preamble hereto to serve as administrative agent and collateral
agent under the Loan Documents (for purposes of this Article VIII, the Administrative Agent and the
Collateral Agent are referred to










 



91



collectively as the “Agents”) and authorizes the Agents to take such actions and to exercise
such powers as are delegated to such Agents by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto. Without limiting the generality of the
foregoing, the Agents are hereby expressly authorized (a) to execute any and all documents
(including releases) with respect to the Collateral and the rights of the Secured Parties with
respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the
Security Documents, including any acknowledgement or agreement referred to in the definition of the
term “Guarantee and Collateral Requirement” and any agreement referred to in Section 9.18, and (b)
to take such actions and to exercise such powers as are delegated to such Agents under Article X,
including the right to release insurance proceeds and Condemnation Proceeds. The provisions of
this Article are solely for the benefit of the Administrative Agent, the Collateral Agent and the
Lenders, and neither Holdings nor any Subsidiary shall have any rights as a third party beneficiary
of any such provisions.




          The person serving as the Administrative Agent and/or the Collateral Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not an Agent, and such person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with Holdings or any Subsidiary or other Affiliate thereof
as if such person were not an Agent hereunder and without any duty to account therefor to the
Lenders.




          Neither Agent shall have any duties or obligations except those expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (a) neither Agent shall be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing, (b) neither Agent shall have any duty to take any discretionary action or to
exercise any discretionary power, except discretionary rights and powers expressly contemplated
hereby that such Agent is required to exercise as directed in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the circumstances as
provided in the Loan Documents); provided that neither Agent shall be required to take any action
that, in its opinion, may expose such Agent to liability or that is contrary to any Loan Document
or applicable law, and (c) except as expressly set forth in the Loan Documents, neither Agent shall
have any duty to disclose, nor shall it be liable for the failure to disclose, any information
relating to Holdings or any Subsidiary or other Affiliate thereof that is communicated to or
obtained by the person serving as Administrative Agent and/or Collateral Agent or any of its
Affiliates in any capacity. Neither Agent shall be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary, or as such Agent shall believe in good faith to be necessary,
under the circumstances as provided in Section 9.08) or in the absence of its own gross negligence
or willful misconduct. Neither Agent shall be deemed to have knowledge of any Default unless and
until written notice thereof is given to such Agent by Holdings, the Borrower or a Lender, and
neither Agent shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document










 



92

delivered thereunder or in connection therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth in any Loan Document or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt
of items expressly required to be delivered to such Agent or to confirm such Agent’s consent to, or
satisfaction with, items expressly requiring its consent or satisfaction.




          Each Agent shall be entitled to rely, and shall not incur any liability for relying, upon any
notice, request, certificate, consent, statement, instrument, document or other writing (including
any electronic message, Internet or intranet website posting or other distribution) believed by it
to be genuine and to have been signed, sent or otherwise authenticated by the proper person
(including, if applicable, a Financial Officer or a Responsible Officer of such person). Each
Agent may also rely, and shall not incur any liability for relying, upon any statement made to it
orally or by telephone and believed by it to have been made by the proper person (including, if
applicable, a Financial Officer or a Responsible Officer of such person). Each Agent may consult
with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.




          Each Agent may perform any of and all its duties and exercise its rights and powers hereunder
or under any other Loan Document by or through any one or more sub-agents appointed by it. Each
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
by or through their respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of the credit
facility provided for herein as well as activities as Agent.




          Subject to the appointment and acceptance of a successor Agent as provided below, either Agent
may resign at any time by notifying the Lenders and the Borrower. Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent,
which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon
the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations hereunder and under the Loan
Documents. The fees payable by Holdings and the Borrower to a successor Agent shall be the same as
those payable to its predecessor unless otherwise agreed by Holdings, the Borrower and such
successor. After an Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 9.05 shall continue in effect for the benefit of such
retiring Agent, its sub-










 



93

agents and their respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while acting as Agent.




          Each Lender acknowledges that it has, independently and without reliance upon the Agents, the
Arranger, any other Lender or any of the Related Parties of any of the foregoing, and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agents, the Arranger, any other Lender or any of the Related Parties of
any of the foregoing, and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.




          Notwithstanding anything herein to the contrary, the Arranger shall not have any duties or
obligations under this Agreement or any other Loan Document, but shall have the benefit of the
indemnities provided for hereunder.




ARTICLE IX




Miscellaneous




          SECTION 9.01. Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by fax or, as follows:





     (a) if to the Borrower or Holdings, to it at Park Central I, 7616 LBJ Freeway, Suite
300, Dallas, TX 75251, Attention of Chief Financial Officer (shai.even@alonusa.com; Fax No.
(972) 367-3719);




     (b) if to the Administrative Agent, to Credit Suisse, Eleven Madison Avenue, New York,
NY 10010, Attention of Agency Group Manager (agency.loanops@credit-suisse.com; Fax No.
(212) 322-2291); and




     (c) if to a Lender, to it at its address (or fax number or email address) set forth in
the Administrative Questionnaire or in the Assignment and Acceptance pursuant to which such
Lender shall have become a party hereto.


All notices and other communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by fax on the date five Business Days after dispatch by certified
or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section or in accordance with the latest unrevoked direction from such
party given in accordance with this Section. As agreed to among Holdings, the Borrower, the
Administrative Agent and the applicable Lenders from time to time, notices and other communications
may also be delivered by e-mail to the e-mail address of a representative of the applicable person
provided from time to time by such person. Holdings, the Borrower, the Administrative Agent and
any









 



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Lender may each change the address or e-mail address for service of notice and other communications
by a notice in writing to the other parties hereto.




          SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by Holdings and the Subsidiaries in this Agreement or any other Loan Document and
in the certificates or other instruments prepared or delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been relied upon by the
Lenders, the Administrative Agent and the Collateral Agent and shall survive the making by the
Lenders of the Loans, regardless of any investigation made by or on behalf of the Lenders, the
Administrative Agent, the Collateral Agent or the Arranger and notwithstanding that any Lender, the
Administrative Agent, the Collateral Agent or the Arranger may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any Loan Document is executed and
delivered or any credit is extended hereunder, and shall continue in full force and effect as long
as the principal of or any accrued interest on any Loan or any Fee or any other amount payable
under this Agreement or any other Loan Document is outstanding and unpaid and so long as the
Commitments have not been terminated. The provisions of Sections 2.14, 2.16, 2.20, 9.05 and 9.16
and Article VIII shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the termination of the Commitments, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral Agent or any Lender.




          SECTION 9.03. Binding Effect. This Agreement shall become binding when it shall have been
executed by Holdings, the Borrower and the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto.




          SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and
assigns of such party, and all covenants, promises and agreements by or on behalf of Holdings, the
Borrower, the Administrative Agent, the Collateral Agent or the Lenders that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and assigns.




          (b) Each Lender may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided, however, that (i) such Lender shall
provide notice to the Borrower and the Administrative Agent of the assignment of any Loans,
(ii) the Administrative Agent must give its prior written consent to such assignment (which consent
shall not be unreasonably withheld), (iii) the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall be in an integral
multiple of, and not less than $1,000,000 unless the Administrative Agent consents to a lower





 











 





95



amount (or, if less, the entire remaining amount of such Lender’s Commitment or Loans);
provided that the principal amount of concurrent assignments to any assignee and its Related Funds
shall be aggregated for purposes of determining compliance with the foregoing minimum assignment
amount, (iv) the parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance via an electronic settlement system acceptable to the
Administrative Agent (or, if previously agreed with the Administrative Agent, manually execute and
deliver to the Administrative Agent an Assignment and Acceptance), and shall pay to the
Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced
in the sole discretion of the Administrative Agent) and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and all
applicable tax documentation. Upon acceptance and recording pursuant to paragraph (e) of this
Section, from and after the effective date specified in each Assignment and Acceptance, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement and
(B) the assigning Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case
of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any
Fees accrued for its account and not yet paid).




          (c) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and records of the names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”). The entries in the Register shall be conclusive and Holdings, the Borrower, the
Administrative Agent, the Collateral Agent and the Lenders may treat each person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by Holdings, the Borrower, the Collateral Agent and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.




          (d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, an Administrative Questionnaire (and all applicable tax documentation)
completed in respect of the assignee (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) above and any written consent to such
assignment required by this Section, the Administrative Agent shall promptly (i) accept such
Assignment and Acceptance and (ii) record the information contained therein in the Register. No
assignment shall be effective unless it has been recorded in the Register as provided in this
paragraph. Each assignee, by its execution and delivery of an Assignment and Acceptance, shall be
deemed to have represented to the assigning Lender and the Administrative Agent that such assignee
is an Eligible Assignee.










 



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          (e) Each Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more Eligible Assignees (“Participants”) in all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided, however, that (i) such Lender’s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the Participants shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to the same extent as if they
were Lenders (but, with respect to any Participant, to no greater extent than the Lender that sold
the participation to such Participant) and (iv) Holdings, the Borrower, the Administrative Agent,
the Collateral Agent and the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to the Loans and to
approve any amendment, modification or waiver of any provision of this Agreement or any other Loan
Document (other than any amendment, modification or waiver described in the first proviso to
Section 9.08(b) that affects such Participant or requires the approval of all the Lenders).




          (f) Any Lender or Participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section, disclose to the assignee or
Participant or proposed assignee or Participant any information relating to Holdings and the
Subsidiaries furnished to such Lender by or on behalf of the Borrower; provided that, prior to any
such disclosure of information designated by the Borrower as confidential, each such assignee or
Participant or proposed assignee or Participant shall execute an agreement whereby such assignee or
Participant shall agree (subject to customary exceptions) to preserve the confidentiality of such
confidential information on terms no less restrictive than those applicable to the Lenders pursuant
to Section 9.16.




          (g) Any Lender may at any time assign all or any portion of its rights under this Agreement to
secure extensions of credit to such Lender or in support of obligations owed by such Lender;
provided that no such assignment shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.




          (h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV
hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such
Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPV shall be
liable for any indemnity or similar payment obligation under this Agreement (all liability for
which shall remain with the Granting Lender). In










 



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furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other person in instituting against, such SPV any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of
the United States or any State thereof. In addition, notwithstanding anything to the contrary
contained in this Section, any SPV may (i) with notice to, but without the prior written consent
of, the Borrower and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender or to any financial
institutions (consented to by the Borrower and Administrative Agent) providing liquidity and/or
credit support to or for the account of such SPV to support the funding or maintenance of Loans and
(ii) disclose on a confidential basis any non-public information relating to its Loans to such
financial institution or to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPV; provided that such SPV makes such
recipient aware of the confidentiality provisions of Section 9.16.




          (i) Neither Holdings nor the Borrower shall assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent and each Lender, and any
attempted assignment without such consent shall be null and void.




          SECTION 9.05. Expenses; Indemnity. (a) Holdings and the Borrower agree, jointly and
severally, to pay all out-of-pocket expenses incurred by the Administrative Agent, the Collateral
Agent, the Arranger and their Affiliates in connection with the arrangement and syndication of the
credit facility provided for herein and the preparation and administration of this Agreement and
the other Loan Documents or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated shall
be consummated) or incurred by the Administrative Agent, the Collateral Agent, the Arranger or any
Lender in connection with the enforcement or protection of its rights in connection with this
Agreement and the other Loan Documents or in connection with the Loans made hereunder, including
the fees, charges and disbursements of Cravath, Swaine & Moore LLP, counsel for the Administrative
Agent, the Collateral Agent and the Arranger, and, in connection with any such enforcement or
protection, the fees, charges and disbursements of any other counsel for the Administrative Agent,
the Collateral Agent, the Arranger or any Lender.




          (b) Holdings and the Borrower agree, jointly and severally, to indemnify the Administrative
Agent, the Collateral Agent, the Arranger, each Lender and each Related Party of any of the
foregoing persons (each such person being called an “Indemnitee”) against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated










 



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thereby, the performance by the parties thereto of their respective obligations thereunder or
the consummation of the Transactions or any other transactions contemplated thereby (including the
syndication of the credit facility provided for hereunder), (ii) the use of the proceeds of the
Loans, (iii) any actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and whether or not any
Indemnitee is a party thereto (and regardless of whether such matter is initiated against or by any
party to the Commitment Letter, this Agreement or any other Loan Document, any Affiliate of any of
the foregoing or any third party), or (iv) any actual or alleged presence or Release of Hazardous
Materials on any property currently or formerly owned or operated by Holdings or any Subsidiary, or
any Environmental Liability related in any way to Holdings or any Subsidiary; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted primarily from the gross negligence or willful
misconduct of such Indemnitee.




          (c) To the extent that Holdings and the Borrower fail to pay any amount required to be paid by
them to the Administrative Agent or the Collateral Agent (or any sub-agent thereof) or any Related
Party of any of the foregoing persons under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent or the Collateral Agent (or any such sub-agent)
or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Administrative Agent or the
Collateral Agent (or such sub-agent) in its capacity as such, or against any Related Party of any
of the foregoing persons acting for the Administrative Agent or the Collateral Agent (or any such
sub-agent) in connection with such capacity. For purposes hereof, a Lender’s “pro rata share”
shall be determined based upon its share of the sum of the outstanding Loans and unused Commitments
at the time (or, if no Loans or Commitments shall then be outstanding or in effect, at the time
Loans were most recently outstanding).




          (d) To the extent permitted by applicable law, neither Holdings nor the Borrower shall assert,
or permit any of their Affiliates or Related Parties to assert, and each hereby waives, any claim
against any Indemnitee, (i) for any damages arising from the use by others of information or other
materials obtained through telecommunications, electronic or other information transmission systems
(including the Internet), or (ii) on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or
as a result of this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof.




          (e) The provisions of this Section shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the termination of the Commitments, the
invalidity or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by










 



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or on behalf of the Administrative Agent, the Collateral Agent or any Lender. All amounts due
under this Section shall be payable on written demand therefor.




          SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender and each of its Affiliates is hereby authorized at any time and from time to time,
except to the extent prohibited by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) or other amounts
at any time held and other indebtedness (in whatever currency) at any time owing by such Lender or
by such an Affiliate to or for the credit or the account of Holdings or the Borrower against any of
and all the obligations then due of Holdings or the Borrower now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Agreement or such other Loan Document. The rights of each
Lender and each of its Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender or Affiliate may have.




          SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.




          SECTION 9.08. Waivers; Amendment. (a) No failure or delay by the Administrative Agent, the
Collateral Agent or any Lender in exercising any power or right hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Collateral Agent and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document
or consent to any departure by the Borrower or any other Loan Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given. No
notice or demand on the Borrower or Holdings in any case shall entitle the Borrower or Holdings to
any other or further notice or demand in similar or other circumstances.




          (b) None of this Agreement, any other Loan Document or any provision hereof or thereof may be
waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or
agreements in writing entered into by Holdings, the Borrower, the Administrative Agent and the
Required Lenders and, in the case of any other Loan Document, pursuant to an agreement or
agreements in writing entered into by the Collateral Agent and, except as otherwise expressly
provided in any such other Loan Document, the Loan Party or Loan Parties that are parties thereto
(and, in the case of the Intercreditor Agreement, the Revolving Collateral Agent), in each case
(other than in the case of amendments, supplements or other modifications of the Intercreditor
Agreement










 



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expressly authorized under Section 9.18) with the consent of the Required Lenders; provided,
however, that (i) any provision of this Agreement or any other Loan Document may be amended by an
agreement in writing entered into by Holdings, the Borrower and the Administrative Agent to cure
any ambiguity, omission, defect or inconsistency so long as, in each case, such amendment does not
adversely affect the rights of any Lender and (ii) no such agreement shall (A) decrease the
principal amount of, or extend the scheduled maturity date, or the date of any scheduled payment
under Section 2.11 of the principal amount, of any Loan, or any date for the payment of any
interest on any Loan, or waive or excuse any such payment or any part thereof, or decrease the rate
of interest on any Loan, in each case without the prior written consent of each Lender affected
thereby, (B) increase or extend the Commitment of, or decrease or extend any date for the payment
of any fees (including any prepayment fees) payable to, any Lender, or waive or excuse any such
payment or any part thereof, without the prior written consent of such Lender, (C) amend or modify
the pro rata requirements of Section 2.17 or 2.18, the provisions of Section 9.04(h), the
provisions of this Section or any other provision of any Loan Document specifying the number or
percentage of Lenders required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, or the percentage set forth in the definition of the
term “Required Lenders”, or release Holdings or any Subsidiary Loan Party from its Guarantee under
the Guarantee and Collateral Agreement (except as expressly provided in Section 9.17), or limit its
liability in respect of such Guarantee, or release all or substantially all the Collateral from the
Liens of the Security Documents, in each case without the prior written consent of each Lender, (D)
contractually subordinate any of the Collateral Agent’s Liens without the prior written consent of
each Lender or (E) modify the protections afforded to an SPV pursuant to the provisions of Section
9.04(h) without the written consent of such SPV; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative Agent or the
Collateral Agent hereunder or under any other Loan Document without the prior written consent of
the Administrative Agent or the Collateral Agent, respectively.




          SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if
at any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts that are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable
law, the rate of interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and Charges payable to
such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such Lender.




          SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the other Loan Documents
constitute the entire contract between the parties relative to the










 



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subject matter hereof, and supersede any and all previous agreements or understandings among
the parties with respect to the subject matter hereof (but do not supersede any provisions of the
Commitment Letter, the Fee Letter or any separate letter agreements with respect to fees payable to
the Administrative Agent that do not by the terms of such documents terminate upon the
effectiveness of this Agreement, all of which provisions shall remain in full force and effect).
Nothing in this Agreement or in the other Loan Documents, express or implied, is intended to confer
upon any person (other than the parties hereto and thereto, their respective successors and assigns
permitted hereunder and, to the extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent, the Collateral Agent and the Lenders) any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other Loan Documents.




          SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




          SECTION 9.12. Severability. In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.




          SECTION 9.13. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become effective as
provided in Section 9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.




          SECTION 9.14. Headings. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this










 



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Agreement and are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.




          SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of Holdings and the
Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the United States of
America sitting in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such federal court. Each
of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that the Administrative
Agent, the Collateral Agent or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against Holdings, the Borrower or any of
their properties in the courts of any jurisdiction.




          (b) Each of Holdings and the Borrower hereby irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.




          (c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.




          SECTION 9.16. Confidentiality. Each of the Administrative Agent, the Collateral Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Related Parties, including accountants, legal counsel and
other agents and advisors (it being understood that the persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory authority or
quasi-regulatory authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to the extent required
by applicable law or by any subpoena or similar legal process, (d) in connection with the exercise
of any remedies hereunder or under the other Loan Documents or any suit, action or proceeding
relating to the enforcement of its rights hereunder or thereunder, (e) subject to an agreement
containing confidentiality undertakings substantially similar to those of this Section, to (i) any
actual or prospective assignee of or Participant in any of its rights or obligations under this
Agreement and the other Loan Documents or (ii) any actual or










 



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prospective counterparty (or its Related Parties) to any swap or derivative transaction
relating to Holdings or any Subsidiary or any of their respective obligations, (f) to any other
party to this Agreement, (g) with the consent of the Borrower or (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Collateral Agent, any Lender or any Affiliate of the
foregoing on a nonconfidential basis from a source other than Holdings or the Borrower. For the
purposes of this Section, “Information” shall mean all information received from Holdings or the
Borrower and related to Holdings or any Subsidiary or their businesses, other than any such
information that was available to the Administrative Agent, the Collateral Agent or any Lender on a
nonconfidential basis prior to its disclosure by Holdings or the Borrower; provided that, in the
case of information received from Holdings or the Borrower after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such person has exercised the same degree of care to maintain the
confidentiality of such Information as such person would accord its own confidential information.




          SECTION
9.17. Release of Collateral and Guarantees. (a) Notwithstanding any contrary provision herein or in any other Loan Document, (i) upon any
sale or other disposition by any Loan Party (other than to Holdings or any Subsidiary) of any
Collateral consisting of inventory or obsolete, worn-out or surplus equipment in the ordinary
course of business in a transaction permitted under Section 6.06(a), the security interests in such
Collateral created by the Guarantee and Collateral Agreement or any other Security Document shall
be automatically released, and (ii) if Holdings and the Borrower shall request the release under
the Guarantee and Collateral Agreement or any other Security Document of any Subsidiary to be
liquidated or dissolved, or of any Collateral not referred to in the preceding clause (i) to be
sold or otherwise disposed of by any Loan Party (other than to Holdings or any Subsidiary), in each
case in a transaction permitted under the terms of this Agreement and shall deliver to the
Administrative Agent and the Collateral Agent a certificate to the effect that such transaction
and, if applicable, the application of the proceeds thereof will comply with the terms of this
Agreement, the Collateral Agent, if satisfied that the applicable certificate is correct, shall,
without the consent of any Lender, execute and deliver all such instruments, releases, financing
statements or other agreements, and take all such further actions, as shall be necessary to
effectuate the release of such Subsidiary from its Guarantee under the Guarantee and Collateral
Agreement or the release of such Collateral, as the case may be, substantially simultaneously with
or at any time after the completion of such transaction. Any such release shall be without
recourse to, or representation or warranty by, the Collateral Agent and shall not require the
consent of any Lender. The Collateral Agent shall execute and deliver all such instruments,
releases, financing statements or other agreements, and take all such further actions, as shall be
necessary to effectuate the release of Collateral required by this paragraph.




          (b) Without limiting the provisions of Section 9.05, the Borrower shall reimburse the
Collateral Agent for all costs and expenses, including reasonable attorneys’










 



104



fees and disbursements, incurred by it in connection with any action contemplated by this
Section.




          SECTION 9.18. Intercreditor Agreement. The Lenders acknowledge that obligations of Holdings
and the Subsidiaries under the Permitted ABL Facility, and certain obligations related thereto,
will be secured by Liens on assets of Holdings and the Subsidiaries that constitute Collateral. At
the request of Holdings and the Borrower, the Collateral Agent shall enter into the Intercreditor
Agreement establishing the relative rights of the Secured Parties and of the secured parties under
the Permitted ABL Facility with respect to the Collateral. Each Lender hereby irrevocably (a)
consents to the subordination of Liens provided for under the Intercreditor Agreement, (b)
authorizes and directs the Collateral Agent to execute and deliver the Intercreditor Agreement and
any documents relating thereto, in each case, on behalf of such Lender and without any further
consent, authorization or other action by such Lender, (c) agrees that, upon the execution and
delivery thereof, such Lender will be bound by the provisions of the Intercreditor Agreement as if
it were a signatory thereto and will take no actions contrary to the provisions of the
Intercreditor Agreement and (d) agrees that no Lender shall have any right of action whatsoever
against the Administrative Agent or the Collateral Agent as a result of any action taken by such
Agent pursuant to this Section or in accordance with the terms of the Intercreditor Agreement.
Each Lender hereby further irrevocably authorizes and directs the Collateral Agent to enter into
such amendments, supplements or other modifications to the Intercreditor Agreement as are
contemplated by Section 5.05 thereof in connection with any extension, renewal, refinancing or
replacement of the Revolving Credit Agreement or any refinancing, in part but not in whole, of the
Loan Document Obligations, in each case, on behalf of such Lender and without any further consent,
authorization or other action by such Lender. The Collateral Agent shall have the benefit of the
provisions of Article VIII with respect to all actions taken by it pursuant to this Section or in
accordance with the terms of the Intercreditor Agreement to the full extent thereof.




          SECTION 9.19. USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA PATRIOT Act it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with such Act.




          SECTION 9.20. No Fiduciary Relationship. Each of Holdings and the Borrower, on behalf of
itself and its subsidiaries, agrees that in connection with all aspects of the transactions
contemplated hereby and any communications in connection therewith, Holdings, the Borrower, the
other Subsidiaries and their Affiliates, on the one hand, and the Administrative Agent, the
Collateral Agent, the Lenders and their Affiliates, on the other hand, will have a business
relationship that does not create, by implication or otherwise, any fiduciary duty on the part of
the Administrative Agent, the Collateral Agent, the Lenders or their Affiliates, and no such duty
will be deemed to have arisen in connection with any such transactions or communications.










 



105




          SECTION 9.21. Non-Public Information. (a) Each Lender acknowledges that all information
furnished to it pursuant to this Agreement by or on behalf of Holdings or the Borrower and relating
to Holdings, the Borrower, the other Subsidiaries or their businesses may include material
non-public information concerning Holdings, the Borrower and the other Affiliates of Holdings and
their securities, and confirms that it has developed compliance procedures regarding the use of
material non-public information and that it will handle such material non-public information in
accordance with such procedures and applicable law, including federal, state and foreign securities
laws.




          (b) All such information, including requests for waivers and amendments, furnished by
Holdings, the Borrower or the Administrative Agent pursuant to, or in the course of administering,
this Agreement will be syndicate-level information, which may contain material non-public
information concerning Holdings, the Borrower and the other Affiliates of Holdings and their
securities. Accordingly, each Lender represents to Holdings, the Borrower and the Administrative
Agent that it has identified in its Administrative Questionnaire a credit contact who may receive
information that may contain material non-public information in accordance with its compliance
procedures and applicable law, including federal, state and foreign securities laws.




ARTICLE X




Casualty and Condemnation Proceeds




     SECTION 10.01. Insurance Proceeds. All proceeds paid to the Collateral Agent under the
property damage and machinery breakdown referred to in Section 5.02(b) shall, subject to the
Intercreditor Agreement, be deposited by it in the Proceeds Collateral Account. If any payments
under such policies are made to Holdings or any Subsidiary, such amounts shall be received only in
trust for the Collateral Agent, shall be segregated from other funds of Holdings or such
Subsidiary, and shall be forthwith paid over to the Collateral Agent in the same form as received
(with any necessary endorsement). The Collateral Agent shall be entitled to participate in (and
shall receive reasonable notice of) all negotiations and other proceedings relating to any claim in
respect of any such policies, and neither Holdings nor any Subsidiary shall, without the prior
approval of the Collateral Agent, make any compromise or settlement in connection with any such
claim relating to a Casualty affecting assets having an aggregate book value or fair market value
of $5,000,000 or more.



     SECTION 10.02. Disposition of Insurance Proceeds. (a) If there shall occur any Casualty in
respect of which insurance proceeds not in excess of $85,000,000 are payable, insurance proceeds
received in respect of such Casualty by the Collateral Agent (and retained by the Collateral Agent
in accordance with the Intercreditor Agreement) may, upon request of the Borrower, be withdrawn
from the Proceeds Collateral Account and paid to the Borrower for application to the repair or
restoration of the damage or destruction giving rise to such Casualty (but not of any ABL Priority
Collateral); provided that Holdings and the Subsidiaries shall have promptly commenced and shall be
diligently continuing efforts to repair or restore the Krotz Springs Refinery,









 



106

in compliance with all legal requirements, so that its value and utility shall be
substantially equal to that of the Krotz Springs Refinery existing immediately prior to such
Casualty; and provided further that the Collateral Agent may establish reasonable procedures for
the monitoring of such repair or restoration and to ensure that such insurance proceeds are applied
only to pay the proper costs of such repair or restoration.




          (b) Subject to Section 2.11(c), if there shall occur any Casualty in respect of which
insurance proceeds in excess of $85,000,000 are payable, insurance proceeds received in respect of
such Casualty by the Collateral Agent (and retained by the Collateral Agent in accordance with the
Intercreditor Agreement) may be withdrawn from the Proceeds Collateral Account and paid to the
Borrower for application to the repair or restoration of the damage or destruction giving rise to
such Casualty (but not of any ABL Priority Collateral) if either (x) the Collateral Agent shall
direct Holdings and the Subsidiaries to undertake such repair or restoration and shall make such
proceeds available therefor or (y) each of the following conditions shall have been satisfied:





     (i) after giving effect to any proposed repair and restoration, such damage or
destruction will not result in a Default or an Event of Default;




     (ii) the Collateral Agent shall have received, to the extent requested by the
Collateral Agent, an opinion of counsel for the Borrower reasonably acceptable to the
Collateral Agent to the effect that no Governmental Approval is necessary to proceed with
the repair and restoration and that no amendment to this Agreement or any other Loan
Document and no other instruments are necessary for the purpose of subjecting the repair or
restoration to the Liens of the Security Documents, except such, if any, as shall have been
delivered to the Collateral Agent (with such opinion stating that any such amendment or
instrument has been duly executed and delivered by, and is a valid and binding agreement
of, Holdings and the Subsidiaries and subjects such repair or restoration to the Liens of
the Security Documents), and any permit or approval not yet obtained (and not ordinarily
obtainable until a later stage of reconstruction) and the obtaining of which shall be
reasonably expected in due course;




     (iii) the Collateral Agent shall have received such additional title insurance, title
insurance endorsements, mechanic’s lien waiver certificates, opinions or other materials as
it shall in its reasonable judgment consider necessary or appropriate in connection with
such repair or restoration or to preserve or protect the Mortgages and the other Security
Documents, the Liens thereunder and its rights hereunder and under the other Loan
Documents;




     (iv) it shall be reasonably certain that the value and utility of the Krotz Springs
Refinery as repaired or restored will be substantially equal to that of the Krotz Springs
Refinery existing immediately prior to such Casualty and, if requested by the Collateral
Agent, a report of an independent engineer retained by the Collateral Agent (at the expense
of the Borrower) with respect thereto; and









 



107



     (v) in the case of a Material Casualty or Condemnation, a Proposed Work Plan, Proposed
Work Budget and Proposed Obligations Service Plan shall have been accepted by the
Collateral Agent;


provided that Holdings and the Subsidiaries shall have promptly commenced and shall be diligently
continuing efforts to repair or restore the Krotz Springs Refinery, in compliance with all legal
requirements, so that its value and utility shall be substantially equal to that of the Krotz
Springs Refinery existing immediately prior to such Casualty. From time to time as such repair or
restoration progresses, insurance proceeds in respect of such Casualty received by the Collateral
Agent (and retained by the Collateral Agent in accordance with the Intercreditor Agreement) may be
withdrawn from the Proceeds Collateral Account as needed to pay amounts then due and payable or
required to be paid and paid over to or at the direction of the Borrower to pay for the cost of the
repair or restoration in respect of which such insurance proceeds were received (but not of any ABL
Priority Collateral), upon the Borrower’s written request and, to the extent requested by the
Collateral Agent, (A) the presentation to the Collateral Agent of all documents, certificates and
information with respect to such insurance proceeds and (B) delivery of a certificate of a
Responsible Officer of each of Holdings and the Borrower (1) describing in reasonable detail the
nature of the repair or restoration work in respect of which funds are then required, (2) stating
the cost of such repair or restoration and the specific amount requested to be paid over to or upon
the order of the Borrower and that such amount is requested to pay amounts then due and payable or
required to be paid in respect thereof, (3) stating that a sufficient amount of funds (including
unused and available commitments under the Permitted ABL Facility as to which all applicable
conditions to borrowing are reasonably expected to be satisfied and the proceeds of any
subordinated debt or equity financing) is or will be available to the Borrower on terms
satisfactory to the Administrative Agent to complete the restoration of the Krotz Springs Refinery,
and (4) stating that no Default or Event of Default has occurred and is continuing; provided that
the Collateral Agent may establish procedures for the monitoring of such repair or restoration and
to ensure that such insurance proceeds are applied only to pay the proper costs of such repair or
restoration and that disbursements in respect of a Material Casualty or Condemnation may only be
made upon verification by an independent engineer retained by the Collateral Agent of continuing
compliance with any applicable Work Plan and Work Budget and by the Collateral Agent of compliance
with any applicable Debt Service Plan.




          SECTION 10.03. Condemnation Proceeds. All compensation, awards and other payments or relief
(including instruments) to which Holdings or any Subsidiary shall be entitled by law or otherwise
in respect of any Condemnation (the “Condemnation Proceeds”) shall be paid directly to the
Collateral Agent, and if paid to Holdings or any Subsidiary, such Condemnation Proceeds shall be
received only in trust for the Collateral Agent, shall be segregated from other funds of Holdings
or such Subsidiary and shall be forthwith paid over to the Collateral Agent in the same form as
received (with any necessary endorsement). All Condemnation Proceeds paid to the Collateral Agent
shall be deposited by it in the Proceeds Collateral Account. The Collateral Agent shall be
entitled to participate in (and shall receive reasonable notice of) all negotiations and other
proceedings relating to any claim in respect of any










 



108



Condemnation, and neither Holdings nor any Subsidiary shall, without the prior approval of the
Collateral Agent, make any compromise or settlement in connection with any such claim relating to a
Condemnation affecting assets having an aggregate book value or fair market value of $5,000,000 or
more.




          SECTION 10.04. Disposition of Condemnation Proceeds. Subject to Section 2.11(c), Condemnation
Proceeds received in respect of any Condemnation by the Collateral Agent may be withdrawn from the
Proceeds Collateral Account and paid to the Borrower for application to the restoration or
replacement of the assets subject to such Condemnation, in the manner and upon the conditions set
forth in respect of insurance proceeds under Section 10.02, mutatis mutandis, for restoration or
replacement of such assets.




          SECTION 10.05. Material Casualty or Condemnation. (a) Within 30 days after the occurrence of
any Material Casualty or Condemnation, the Borrower shall deliver to the Collateral Agent a
certificate (the “Work Certificate”) of the Borrower, approved in writing by an independent
engineer retained by the Collateral Agent (at the expense of the Borrower), (i) describing in
reasonable detail the work to be done and property to be purchased in connection with the proposed
repair or restoration of the Krotz Springs Refinery, including timing schedules (the “Proposed Work
Plan”), (ii) stating in reasonable detail the amounts required to complete each stage of the
Proposed Work Plan and the sources from which any amounts in excess of the insurance proceeds or
Condemnation Proceeds received with respect to such Casualty or Condemnation are to be funded (the
“Proposed Work Budget”) and (iii) setting forth in reasonable detail (including financial
projections) the manner in which Holdings and the Subsidiaries will continue to meet their
obligations (including all financial covenants) under the Loan Documents, the Permitted ABL
Facility, the Crack Spread Hedging Agreement, the Earnout Agreement and the ExxonMobil Pipeline
Supply Contracts (the “Proposed Obligations Service Plan”).




          (b) The Collateral Agent shall communicate to the Borrower not later than 30 days after
receipt of the Work Certificate its satisfaction or dissatisfaction with the Proposed Work Plan,
the Proposed Work Budget and the Proposed Obligations Service Plan. Any Proposed Work Plan,
Proposed Work Budget or Proposed Obligations Service Plan may be rejected if, in the reasonable
judgment of the Collateral Agent, (i) such Proposed Work Plan, Proposed Work Budget or Proposed
Obligations Service Plan (A) could not reasonably be expected to be carried out or complied with,
(B) would impair the value or transferability of the Collateral or the ability of the Lenders or
their designees to operate the Krotz Springs Refinery upon exercise of remedies hereunder,
(C) would not, in the reasonable judgment of the Collateral Agent, adequately assure the ability of
Holdings and the Subsidiaries, during the repair or restoration of the Krotz Springs Refinery and
thereafter, to perform their material obligations under the Loan Documents, the Permitted ABL
Facility, the Crack Spread Hedging Agreement, the Earnout Agreement and the ExxonMobil Pipeline
Supply Contracts, (ii) if such Proposed Work Plan or Proposed Work Budget would result in a
reduction of the capacity of the Krotz Springs Refinery to a level below the level in effect prior
to the applicable Casualty or Condemnation or (iii) if the Proposed Obligations Service Plan shows
a deficit. If a










 



109



Proposed Work Plan, Proposed Work Budget and Proposed Obligations Service Plan have not been
accepted by the Collateral Agent within 90 days after the occurrence of the applicable Material
Casualty or Condemnation, a Terminal Casualty or Condemnation Event shall be deemed to have
occurred for all purposes of this Agreement and all other Loan Documents.




          SECTION 10.06. Proceeds Collateral Account. Promptly upon the occurrence of the initial
Casualty or Condemnation, the Borrower shall establish with or in the name of the Collateral Agent
an account (the “Proceeds Collateral Account”) over which the Collateral Agent shall have control
and rights of withdrawal, subject to the provisions of this Article X. There shall be deposited in
the Proceeds Collateral Account the amounts required to be so deposited under Sections 10.01 and
10.03. Amounts on deposit in the Proceeds Collateral Account at any time shall be held by the
Collateral Agent as security for the Secured Obligations, and shall be invested and reinvested by
the Collateral Agent, in consultation with the Borrower, in Permitted Investments; provided that
the investment of such amounts shall be controlled solely by the Collateral Agent during the
continuance of any Default or Event of Default.




          SECTION 10.07. Default or Event of Default. If a Default or Event of Default shall have
occurred and be continuing, then any provisions of this Article X to the contrary notwithstanding,
any and all insurance proceeds and Condemnation Proceeds may be applied by the Collateral Agent to
curing such Default or Event of Default, or may be held by the Collateral Agent as security for the
Secured Obligations, and may be held, applied or realized upon as provided herein or in the other
Loan Documents with respect to holding, applying or realizing upon Collateral after the occurrence
of a Default or Event of Default.




          SECTION 10.08. Risk of Loss. Risk of loss of, damage to or destruction of the Collateral is
and shall remain with Holdings and the Subsidiaries.










 



110




          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.




	 	 	 	 	 	 
	 	ALON REFINING LOUISIANA, INC.,

 	 
	 	by	 	/s/ Jeff D. Morris	 
	 	 	 	Name:  	Jeff D. Morris 	 
	 	 	 	Title:  	President, Chief Executive Officer 	 
	 
	 	ALON REFINING KROTZ SPRINGS, INC.,

 	 
	 	by	 	/s/ Jeff D. Morris	 
	 	 	 	Name:  	Jeff D. Morris 	 
	 	 	 	Title:  	President, Chief Executive Officer 	 









 



111

	 	 	 	 	 	 
	 	CREDIT SUISSE, Cayman Islands
Branch, individually and as Administrative Agent and Collateral Agent,

 	 
	 	by	 	/s/ James Moran	 
	 	 	 	Name:  	James Moran 	 
	 	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	by	  	 /s/ Nupur Kumar	 
	 	 	 	Name:  	Nupur Kumar 	 
	 	 	 	Title:  	Associate 	 










 





	 	 	 	 	 




SIGNATURE PAGE TO THE

ALON REFINING KROTZ SPRINGS, INC.

TERM LOAN AGREEMENT




	 	 	 	 	 	 
	 	FORTRESS CREDIT CORP.

 	 
	 	by	 	/s/ Constantine M. Dakolias	 
	 	 	 	Name:  	Constantine M. Dakolias 	 
	 	 	 	Title:  	President