exv10w1






Exhibit 10.1




 

 






SECOND AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of April 7, 2009




among




HOLLY CORPORATION,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,




UBS LOAN FINANCE LLC

and

U.S. BANK NATIONAL ASSOCIATION,

as Co-Documentation Agents




UNION BANK OF CALIFORNIA, N.A.

and

COMPASS BANK,

as Syndication Agents




The Other Lenders Party Hereto,




and




BANC OF AMERICA SECURITIES LLC,

as Lead Arranger and Sole Book Manager




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	Section
	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS	 	 	2	 
	 

	 	 	1.01.	 	 	Defined Terms
	 	 	2	 
	 

	 	 	1.02.	 	 	Other Interpretive Provisions
	 	 	35	 
	 

	 	 	1.03.	 	 	Accounting Terms
	 	 	35	 
	 

	 	 	1.04.	 	 	Rounding
	 	 	36	 
	 

	 	 	1.05.	 	 	References to Agreements and Laws
	 	 	36	 
	 

	 	 	1.06.	 	 	Times of Day
	 	 	36	 
	 

	 	 	1.07.	 	 	Letter of Credit Amounts
	 	 	36	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE II. the COMMITMENTS and Credit Extensions	 	 	36	 
	 

	 	 	2.01.	 	 	Loans
	 	 	36	 
	 

	 	 	2.02.	 	 	Borrowings, Conversions and Continuations of Revolving Credit Loans
	 	 	37	 
	 

	 	 	2.03.	 	 	Letters of Credit
	 	 	38	 
	 

	 	 	2.04.	 	 	Swing Line Loans
	 	 	48	 
	 

	 	 	2.05.	 	 	Repayment of Loans as of the Second Restatement Effective Date
	 	 	52	 
	 

	 	 	2.06.	 	 	Prepayments
	 	 	52	 
	 

	 	 	2.07.	 	 	Termination or Reduction of Commitments
	 	 	53	 
	 

	 	 	2.08.	 	 	Repayment of Loans
	 	 	53	 
	 

	 	 	2.09.	 	 	Interest
	 	 	54	 
	 

	 	 	2.10.	 	 	Fees
	 	 	55	 
	 

	 	 	2.11.	 	 	Computation of Interest and Fees
	 	 	55	 
	 

	 	 	2.12.	 	 	Evidence of Debt
	 	 	56	 
	 

	 	 	2.13.	 	 	Payments Generally
	 	 	56	 
	 

	 	 	2.14.	 	 	Sharing of Payments
	 	 	58	 
	 

	 	 	2.15.	 	 	Increase in Commitments
	 	 	59	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	60	 
	 

	 	 	3.01.	 	 	Taxes
	 	 	60	 
	 

	 	 	3.02.	 	 	Illegality
	 	 	63	 
	 

	 	 	3.03.	 	 	Inability to Determine Rates
	 	 	64	 
	 

	 	 	3.04.	 	 	Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	64	 
	 

	 	 	3.05.	 	 	Compensation for Losses
	 	 	66	 
	 

	 	 	3.06.	 	 	Matters Applicable to all Requests for Compensation
	 	 	66	 
	 

	 	 	3.07.	 	 	Survival
	 	 	66	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO Credit Extensions	 	 	67	 
	 

	 	 	4.01.	 	 	Second Restatement Effective Date
	 	 	67	 
	 

	 	 	4.02.	 	 	Conditions to all Credit Extensions
	 	 	69	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES	 	 	70	 
	 

	 	 	5.01.	 	 	Existence, Qualification and Power; Compliance with Laws
	 	 	70	 
	 

	 	 	5.02.	 	 	Authorization; No Contravention
	 	 	70	 






i









 






	 	 	 	 	 	 	 	 	 	 	 
	Section
	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	5.03.	 	 	Governmental Authorization; Other Consents
	 	 	70	 
	 

	 	 	5.04.	 	 	Binding Effect
	 	 	70	 
	 

	 	 	5.05.	 	 	Financial Statements; No Material Adverse Effect
	 	 	71	 
	 

	 	 	5.06.	 	 	Litigation
	 	 	71	 
	 

	 	 	5.07.	 	 	No Default
	 	 	71	 
	 

	 	 	5.08.	 	 	Ownership of Property; Liens
	 	 	71	 
	 

	 	 	5.09.	 	 	Environmental Matters
	 	 	71	 
	 

	 	 	5.10.	 	 	Insurance
	 	 	72	 
	 

	 	 	5.11.	 	 	Taxes
	 	 	72	 
	 

	 	 	5.12.	 	 	ERISA Compliance
	 	 	72	 
	 

	 	 	5.13.	 	 	Subsidiaries
	 	 	73	 
	 

	 	 	5.14.	 	 	Margin Regulations; Investment Company Act;
Public Utility Holding Company Act
	 	 	73	 
	 

	 	 	5.15.	 	 	Disclosure
	 	 	73	 
	 

	 	 	5.16.	 	 	Compliance with Laws
	 	 	73	 
	 

	 	 	5.17.	 	 	Guarantee and Collateral Agreement
	 	 	74	 
	 

	 	 	5.18.	 	 	Solvency
	 	 	74	 
	 

	 	 	5.19.	 	 	Use of Proceeds
	 	 	74	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS	 	 	74	 
	 

	 	 	6.01.	 	 	Financial Statements
	 	 	74	 
	 

	 	 	6.02.	 	 	Certificates; Other Information
	 	 	75	 
	 

	 	 	6.03.	 	 	Notices
	 	 	77	 
	 

	 	 	6.04.	 	 	Payment of Obligations
	 	 	77	 
	 

	 	 	6.05.	 	 	Preservation of Existence, Etc.
	 	 	77	 
	 

	 	 	6.06.	 	 	Maintenance of Properties
	 	 	78	 
	 

	 	 	6.07.	 	 	Maintenance of Insurance
	 	 	78	 
	 

	 	 	6.08.	 	 	Compliance with Laws
	 	 	78	 
	 

	 	 	6.09.	 	 	Books and Records
	 	 	78	 
	 

	 	 	6.10.	 	 	Inspection Rights
	 	 	78	 
	 

	 	 	6.11.	 	 	Use of Proceeds
	 	 	79	 
	 

	 	 	6.12.	 	 	Additional Guarantors
	 	 	79	 
	 

	 	 	6.13.	 	 	Borrowing Base Certificate and Related Reports
	 	 	79	 
	 

	 	 	6.14.	 	 	Borrowing Base Verification
	 	 	80	 
	 

	 	 	6.15.	 	 	Further Assurances
	 	 	81	 
	 

	 	 	6.16.	 	 	Designation of Subsidiaries
	 	 	81	 
	 

	 	 	6.17.	 	 	Certain Permitted Acquisitions
	 	 	82	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS	 	 	82	 
	 

	 	 	7.01.	 	 	Liens
	 	 	82	 
	 

	 	 	7.02.	 	 	Investments
	 	 	83	 
	 

	 	 	7.03.	 	 	Indebtedness
	 	 	84	 
	 

	 	 	7.04.	 	 	Fundamental Changes
	 	 	86	 
	 

	 	 	7.05.	 	 	Dispositions
	 	 	86	 
	 

	 	 	7.06.	 	 	Restricted Payments
	 	 	87	 
	 

	 	 	7.07.	 	 	Change in Nature of Business
	 	 	88	 
	 

	 	 	7.08.	 	 	Transactions with Affiliates
	 	 	88	 






ii









 






	 	 	 	 	 	 	 	 	 	 	 
	Section
	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	7.09.	 	 	Burdensome Agreements
	 	 	88	 
	 

	 	 	7.10.	 	 	Use of Proceeds
	 	 	89	 
	 

	 	 	7.11.	 	 	Financial Covenants
	 	 	89	 
	 

	 	 	7.12.	 	 	Fiscal Periods
	 	 	89	 
	 

	 	 	7.13.	 	 	Change Name; State of Formation
	 	 	89	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES	 	 	89	 
	 

	 	 	8.01.	 	 	Events of Default
	 	 	89	 
	 

	 	 	8.02.	 	 	Remedies Upon Event of Default
	 	 	91	 
	 

	 	 	8.03.	 	 	Application of Funds
	 	 	92	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT	 	 	93	 
	 

	 	 	9.01.	 	 	Appointment and Authority
	 	 	93	 
	 

	 	 	9.02.	 	 	Rights as a Lender
	 	 	93	 
	 

	 	 	9.03.	 	 	Exculpatory Provisions
	 	 	94	 
	 

	 	 	9.04.	 	 	Reliance by Administrative Agent
	 	 	95	 
	 

	 	 	9.05.	 	 	Delegation of Duties
	 	 	95	 
	 

	 	 	9.06.	 	 	Resignation of Administrative Agent
	 	 	95	 
	 

	 	 	9.07.	 	 	Non-Reliance on Administrative Agent and Other Lenders
	 	 	96	 
	 

	 	 	9.08.	 	 	No Other Duties, Etc.
	 	 	96	 
	 

	 	 	9.09.	 	 	Administrative Agent May File Proofs of Claim
	 	 	96	 
	 

	 	 	9.10.	 	 	Collateral and Guarantee Matters
	 	 	97	 
	 

	 	 	9.11.	 	 	Indemnification of the Administrative Agent
	 	 	98	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE X. MISCELLANEOUS	 	 	98	 
	 

	 	 	10.01.	 	 	Amendments, Etc.
	 	 	98	 
	 

	 	 	10.02.	 	 	Notices; Effectiveness; Electronic Communications
	 	 	100	 
	 

	 	 	10.03.	 	 	No Waiver; Cumulative Remedies
	 	 	102	 
	 

	 	 	10.04.	 	 	Expenses; Indemnity; Damage Waiver
	 	 	102	 
	 

	 	 	10.05.	 	 	Payments Set Aside
	 	 	104	 
	 

	 	 	10.06.	 	 	Successors and Assigns
	 	 	104	 
	 

	 	 	10.07.	 	 	Confidentiality
	 	 	108	 
	 

	 	 	10.08.	 	 	Right of Set-off
	 	 	109	 
	 

	 	 	10.09.	 	 	Interest Rate Limitation
	 	 	109	 
	 

	 	 	10.10.	 	 	Counterparts
	 	 	110	 
	 

	 	 	10.11.	 	 	Integration
	 	 	110	 
	 

	 	 	10.12.	 	 	Survival of Representations and Warranties
	 	 	110	 
	 

	 	 	10.13.	 	 	Severability
	 	 	110	 
	 

	 	 	10.14.	 	 	Replacement of Lenders
	 	 	110	 
	 

	 	 	10.15.	 	 	Governing Law
	 	 	111	 
	 

	 	 	10.16.	 	 	Waiver of Right to Trial by Jury
	 	 	112	 
	 

	 	 	10.17.	 	 	No Advisory or Fiduciary Responsibility
	 	 	112	 
	 

	 	 	10.18.	 	 	USA PATRIOT ACT NOTICE
	 	 	112	 
	 

	 	 	10.19.	 	 	Amendment and Restatement
	 	 	113	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	SIGNATURES	 	 	S-1	 






iii









 






SCHEDULES




	 	 	 
	1.01(a)

	 	Approved Account Debtors
	1.01(b)

	 	Designated Customers
	1.01(c)

	 	Eligible Government Contracts
	1.01(d)

	 	Existing Letters of Credit
	1.01(e)

	 	Specified Assets
	1.01(f)

	 	Asset Contribution
	2.01

	 	Commitments and Pro Rata Shares
	5.06

	 	Litigation
	5.09

	 	Environmental Matters
	5.13

	 	Subsidiaries and Other Equity Investments
	6.16

	 	Unrestricted Subsidiaries
	7.01

	 	Existing Liens
	7.02

	 	Investments
	7.03

	 	Existing Indebtedness
	7.05

	 	Permitted Dispositions
	7.08

	 	Transactions with Affiliates
	10.02

	 	Administrative Agent’s Office, Certain Addresses for Notices






EXHIBITS




	 	 	 
	Form of	 	 
	A

	 	Loan Notice
	B

	 	Note
	C

	 	Compliance Certificate
	D

	 	Assignment and Assumption
	E

	 	Guarantee and Collateral Agreement
	F

	 	Opinion Matters
	G

	 	Borrowing Base Certificate
	H

	 	First Amendment to Guarantee and Collateral Agreement and Reaffirmation and Assumption Agreement
	I

	 	Swing Line Loan Notice







iv











 





SECOND AMENDED AND RESTATED CREDIT AGREEMENT




     This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of April 7, 2009, among
HOLLY CORPORATION, a Delaware corporation (the “Borrower”), each lender from time to time
party hereto (collectively, the “Lenders” and individually, a “Lender”), BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, UBS LOAN FINANCE LLC and
U.S. BANK NATIONAL ASSOCIATION, as Co-Documentation Agents (in such capacity, the
“Co-Documentation Agents”) and UNION BANK OF CALIFORNIA, N.A. and COMPASS BANK, as
Syndication Agents (in such capacity, the “Syndication Agents”).



PRELIMINARY STATEMENTS:




     The Borrower, the lenders party thereto (the “Original Lenders”), the Administrative
Agent, PNC Bank, National Association and Guaranty Bank, as co-documentation agents and Union Bank
of California, N.A., as syndication agent, were parties to a credit agreement dated as of July 1,
2004 (as amended prior to the First Restatement Effective Date, the “Original Credit
Agreement”), pursuant to which the Original Lenders made available to the Borrower a
$175,000,000 revolving credit facility in accordance with the terms and conditions thereof;



     The Borrower, the lenders party thereto (the “First Restatement Lenders”), the
Administrative Agent, PNC Bank, National Association and Guaranty Bank, as co-documentation agents,
and Union Bank of California, N.A. and Compass Bank, as co-syndication agents, are parties to an
amended and restated credit agreement dated as of March 14, 2008 (as amended, amended and restated,
supplemented or otherwise modified prior to the Second Restatement Effective Date, the
“Restated Credit Agreement”), pursuant to which the First Restatement Lenders made
available to the Borrower a $175,000,000 revolving credit facility in accordance with the terms and
conditions thereof (the “First Restatement Loans”);



     The Administrative Agent and certain of the First Restatement Lenders wish to amend and
restate the Restated Credit Agreement in its entirety to (i) increase the aggregate commitments in
the Restated Credit Agreement to be used for working capital, capital expenditures, and other
lawful corporate purposes (including Permitted Acquisitions and Letters of Credit) and (ii) modify
certain other terms applicable to the First Restatement Loans as more fully set forth herein to be
effective as of the Second Restatement Effective Date;



     It is the intent of the parties hereto that this Agreement not constitute a novation of the
obligations and liabilities of the parties under the Original Credit Agreement or the Restated
Credit Agreement, and that this Agreement amend and restate in its entirety the Restated Credit
Agreement and re-evidence the Obligations outstanding on the Second Restatement Effective Date as
contemplated hereby; and



     It is the intent of the parties hereto to confirm that all obligations and liabilities of the
parties under the other Loan Documents, as amended hereby, shall continue in full force and effect.



1









 





     NOW, THEREFORE, for good and valuable consideration of the premises and the mutual agreements,
provisions and covenants hereinafter contained, the parties hereto hereby amend and restate the
Restated Credit Agreement (which is hereby superseded in all respects by this Second Amended and
Restated Credit Agreement) in its entirety as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




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



     “Acceptable Issuer” means a United States domestic bank or United States branch of a
foreign bank, in either case rated “A-” or higher by S&P and “A3” or higher by Moody’s.



     “Account Control Default” means any Event of Default.



     “Account Debtor” means, with respect to any Receivable, the Person or Persons
obligated to make payments with respect to such Receivable, including any guarantor thereof.



     “Acquisition Consideration” means the purchase consideration for any Permitted
Acquisition and all other payments by the Borrower or any other Loan Party in exchange for, or as
part of, or in connection with, such Permitted Acquisition, whether paid in cash or by exchange of
equity interests or of properties or otherwise and whether payable at or prior to the consummation
of such Permitted Acquisition or deferred for payment at any future time, whether or not any such
future payment is subject to the occurrence of any contingency, and includes any and all payments
representing the purchase price and any assumptions of Indebtedness, “earn-outs” and other
agreements to make any payment the amount of which is, or the terms of payment of which are, in any
respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of
any Person or business; provided that any such future payment that is subject to a
contingency shall be considered Acquisition Consideration only to the extent of the reserve, if
any, required under GAAP at the time of such sale to be established in respect thereof by the
Borrower or any other Loan Party.



     “Acquisition Documentation” means, the acquisition agreement, the purchase agreement
or any similar agreement with the seller, and all material schedules, exhibits and annexes thereto
and all side letters and agreements materially affecting the terms thereof or entered into to
effectuate any Permitted Acquisition.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



2









 





     “Affiliate” means, with respect to any Person, another Person that directly or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified. “Control” means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto.



     “Agent-Related Persons” means the Administrative Agent, the Co-Documentation Agents
and the Syndication Agents, together with each of their respective Affiliates (including, in the
case of Bank of America in its capacity as the Administrative Agent, the Arranger), and the
officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.



     “Aggregate Commitments” mean the Commitments of all the Lenders.



     “Agreement” means (i) in respect of the period prior to the First Restatement
Effective Date, the Original Credit Agreement, (ii) in respect of any period on and after the First
Restatement Effective Date and prior to the Second Restatement Effective Date, the Restated Credit
Agreement and (iii) in respect of any period on and after the Second Restatement Effective Date,
this Second Amended and Restated Credit Agreement, dated as of April 7, 2009, as it may be amended,
amended and restated, supplemented or otherwise modified from time to time.



     “Applicable Rate” means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(b):



Applicable Rate




	 	 	 	 	 	 	 	 	 
	 	 	Consolidated	 	 	 	Eurodollar Rate +	 	Base Rate +
	Pricing Level	 	Leverage Ratio	 	Commitment Fee	 	Letters of Credit	 	Swing Line Loans
	1
	 	£1.00:1
	 	0.50%
	 	3.25%
	 	2.25%
	2
	 	> 1.00:1 but £ 2.50:1
	 	0.50%
	 	3.50%
	 	2.50%
	3
	 	>2.50:1
	 	0.50%
	 	3.75%
	 	2.75%






     Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with
such Section, then Pricing Level 3 shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered until the first Business Day after



3









 







such Compliance Certificate is actually delivered. The Applicable Rate in effect on the Second
Restatement Effective Date shall be based upon the Consolidated Leverage Ratio as set forth in the
most recent Compliance Certificate received by the Administrative Agent on or prior to the Second
Restatement Effective Date.



     Notwithstanding anything herein to the contrary, for the sole purpose of determining the
Applicable Rate hereunder, the Consolidated Leverage Ratio shall be calculated without giving
effect to any obligations arising under the Indemnification Agreements to the extent that such
obligations do not exceed $210,000,000 in the aggregate (provided that following the
consummation of the Asset Contribution, the amount of such obligations shall be increased up to an
amount not to exceed $275,000,000 in the aggregate).



     “Approved Account Debtor” means (a) an Account Debtor of any Loan Party approved by
the Administrative Agent (at the direction of the Required Lenders in their reasonable discretion),
(b) an Account Debtor which is an Investment Grade Customer or the obligations of which are fully
and unconditionally guaranteed by an Investment Grade Customer and (c) each Account Debtor listed
on Schedule 1.01(a).



     “Approved Account Debtor Receivable” means (a) an Eligible Receivable carried on the
books of a Loan Party as to which the applicable Account Debtor is an Approved Account Debtor and
(b) any Eligible Receivable as to which an Acceptable Issuer has issued an irrevocable standby
letter of credit in the amount of such Eligible Receivable for the benefit of the applicable Loan
Party to be drawn in the event of a default by the applicable Account Debtor; provided that
from and after the occurrence and during the continuance of an Event of Default, all amounts
received by any Loan Party in respect of any such letter of credit shall be held in trust for the
benefit of the Administrative Agent and immediately after receipt thereof delivered to the
Administrative Agent by such Loan Party in accordance with Section 6.3 of the Guarantee and
Collateral Agreement.



     “Arranger” means Banc of America Securities LLC, in its capacity as lead arranger and
sole book manager.



     “Asset Contribution” has the meaning set forth on Schedule 1.01(f).



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b) and the definition of “Eligible Assignee”), and accepted by the
Administrative Agent, in substantially the form of Exhibit D or any other form approved by
the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with
GAAP if such lease were accounted for as a capital lease.



4









 





     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries for the fiscal year ended December 31, 2008, and the
related consolidated statements of income or operations, Shareholders’ Equity and cash flows for
such fiscal year of the Borrower and its Consolidated Subsidiaries, including the notes thereto.



     “Availability Period” means the period from and including the Second Restatement
Effective Date to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.07, and (c) the date of termination of the
Commitment of each Lender to make Revolving Credit Loans and of the obligation of the L/C Issuer to
make L/C Credit Extensions pursuant to Section 8.02.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of:
(a) the Federal Funds Rate plus 1/2 of 1%, (b) the Eurodollar Rate plus 1% and (c)
the rate of interest in effect for such day as publicly announced from time to time by Bank of
America as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various
factors including Bank of America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such prime rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public announcement of such change.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing, as the
context may require.



     “Borrowing Base” means, as of the date of the most recent Borrowing Base Certificate
delivered to the Administrative Agent by the Borrower, an amount equal to the sum of




     (a) 85% of the outstanding balance of Eligible Commercial Receivables (90% with respect
to any Approved Account Debtor Receivables); plus




     (b) 95% of the outstanding balance of Eligible Government Receivables; plus




     (c) 80% of Eligible Inventory; plus




     (d) 80% of Eligible Product In Transit; plus




     (e) 100% of Pledged Cash;


provided, however, that the aggregate amount included in the Borrowing Base
pursuant to clauses (c) and (d) above shall not exceed 65% of the Borrowing Base then in effect.





5









 








     The Borrowing Base as set forth in the Borrowing Base Certificate most recently delivered to
the Administrative Agent by the Borrower hereunder shall constitute the “Borrowing Base” for all
purposes hereunder.



     “Borrowing Base Certificate” means a certificate substantially in the form of
Exhibit G executed by a Responsible Officer of the Borrower.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located or in New York and, if such day relates to any
Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and
between banks in the London interbank eurodollar market.



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as
collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of
Lenders to fund participations in respect of either thereof (as the context may require), cash or
deposit account balances pursuant to documentation in form and substance reasonably satisfactory to
(a) the Administrative Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable). “Cash
Collateral” shall have a meaning correlative to the foregoing.



     “Cash Equivalents” means any of the following types of Investments, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all Liens (other than Liens
created under the Collateral Documents and other Liens permitted hereunder)




     (a) securities issued or fully guaranteed or insured by the United States Government or
any agency thereof and backed by the full faith and credit of the United States having
maturities of not more than 360 days from the date of acquisition thereof;




     (b) time deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the
United States of America, any state thereof or the District of Columbia or is the principal
banking subsidiary of a bank holding company organized under the laws of the United States
of America, any state thereof or the District of Columbia, and is a member of the Federal
Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as
described in clause (c) of this definition and (iii) has combined capital and surplus of at
least $1,000,000,000, in each case with maturities of not more than 180 days from the date
of acquisition thereof;




     (c) commercial paper of an issuer rated at least “A-1” (or the then equivalent grade)
by S&P or “Prime-1” (or the then equivalent grade) by Moody’s at the time of acquisition or
guaranteed by a letter of credit issued by a financial institution rated at least A (or then
equivalent grade, in each case with stable outlook) by S&P and A2 (or then equivalent grade,
in each case with stable outlook) by Moody’s at the time of acquisition and such financial
institution otherwise meets the requirements of subsections 
(i) and (iii) of clause (b) of this definition, in each case
having a tenor of not more than 180 days;



6









 






     (d) taxable and tax-exempt municipal securities rated at least A (or then equivalent
grade) by S&P and A2 (or then equivalent grade) by Moody’s, including variable rate
municipal securities, having maturities or put rights of not more than twelve (12) months
from the date of acquisition; provided that no taxable and tax-exempt municipal
securities that constitutes auction rate securities shall, at any time, be considered Cash
Equivalents hereunder; and




     (e) Investments, classified in accordance with GAAP as current assets of the Borrower
or any of its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial institutions rated at
least A (or then equivalent grade) by S&P and A2 (or then equivalent grade) by Moody’s, and
the portfolios of which are comprised of assets at least 95% of which are Investments of the
character, quality and maturity described in clauses (a), (b), (c) and (d) of this
definition.



     “Cash Investments” means (a) securities issued or fully guaranteed or insured by the
United States Government or any agency thereof and backed by the full faith and credit of the
United States having maturities of not more than twenty-four (24) months from the date of
acquisition; (b) corporate and bank debt of an issuer rated at least A- (or then equivalent grade,
in each case with stable outlook) by S&P and A3 (or then equivalent grade, in each case with stable
outlook) by Moody’s at the time of acquisition and having maturities of not more than twenty-four
(24) months from the date of acquisition; (c) certificates of deposit, time deposits, Eurodollar
time deposits, or bankers’ acceptances, having in each case a tenor of not more than twenty-four
(24) months from the date of acquisition, issued by any U.S. commercial bank or any branch or
agency of a non-U.S. commercial bank licensed to conduct business in the United States having
combined capital and surplus of not less than $500,000,000 whose long term securities are rated at
least A- (or then equivalent grade, in each case with stable outlook) by S&P and A3 (or then
equivalent grade, in each case with stable outlook) by Moody’s at the time of acquisition; (d)
commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moody’s at the time of
acquisition, or guaranteed by a letter of credit issued by a financial institution meeting the
requirements in (c) and in either case having a tenor of not more than 270 days; (e) taxable and
tax-exempt municipal securities rated at least A (or then equivalent grade) by S&P and A2 (or then
equivalent grade) by Moody’s, including variable rate municipal securities, having maturities or
put rights of not more than twenty-four (24) months from the date of acquisition; (f) repurchase
agreements relating to any of the investments listed in clauses (a) through (e) above with a market
value at least equal to the consideration paid in connection therewith, with any Person who
regularly engages in the business of entering into repurchase agreements and has a combined capital
and surplus of not less than $500,000,000 whose long term securities are rated at least A- (or then
equivalent grade) by S&P and A3 (or then equivalent grade) by Moody’s at the time of acquisition;
(g) asset-backed securities having as the underlying asset securities issued or guaranteed by the
Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association rated at least
A- (or then equivalent grade, in each case with stable outlook) by S&P and A3 (or then equivalent
grade, in each case with stable outlook) by Moody’s at the time of acquisition and having
maturities of not more than twenty-four (24)
months from the date of acquisition; and (h) money market mutual or similar funds having
assets in excess of $100,000,000, at least 95% of the assets of which are comprised of assets
specified in clauses (a), (c), (d) and (e) above.



7









 





     “Cash Management Obligations” means liabilities of any Loan Party owing to any
Agent-Related Persons or to any Lender (or an Affiliate of a Lender in reliance on such Lender’s
agreement to indemnify such Affiliate) relating to or arising out of the provision by such
Agent-Related Person, such Lender or such Affiliate, as applicable, of Cash Management Products.



     “Cash Management Products” means (a) cash and treasury management services, including
controlled disbursement and lockbox services and (b) services relating to the establishment and
maintenance of deposit accounts.



     “Change in Law” means the occurrence, after the Second Restatement Effective Date, of
any of the following: (a) the adoption or taking effect 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 request,
guideline or directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means, with respect to any Person, an event or series of events by
which:




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) other than the Permitted Holders becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934, except that a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire (such right, an “option
right”), whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 35% or more of the equity securities of such Person
entitled to vote for members of the board of directors or equivalent governing body of such
Person on a fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right); or




     (b) during any period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of such Person cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of
that board or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of one or more directors by
or on behalf of the board of directors).



8









 





     “Closing Date” means July 1, 2004.



     “Code” means the Internal Revenue Code of 1986.



     “Co-Documentation Agents” has the meaning specified in the introductory paragraph
hereto.



     “Collateral” has the meaning given to that term in the Guarantee and Collateral
Agreement.



     “Collateral Account” has the meaning given to that term in the Guarantee and
Collateral Agreement.



     “Commitment” means, as to each Lender, its obligation to (a) make Revolving Credit
Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in Swing Line
Loans, and (c) purchase participations in L/C Obligations, in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
The aggregate amount of the Commitments as of the Second Restatement Effective Date is equal to
$300,000,000.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
C.



     “Consolidated EBITDA” means, for any period, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period
plus (a) the following to the extent deducted in calculating such Consolidated Net Income:
(i) Consolidated Interest Charges for such period, (ii) the provision for federal, state, local and
foreign income taxes payable by the Borrower and its Restricted Subsidiaries for such period, (iii)
the amount of depreciation and amortization expense deducted in determining such Consolidated Net
Income, (iv) any other non-cash charges and other non-recurring expenses of the Borrower and its
Restricted Subsidiaries reducing such Consolidated Net Income which do not represent a cash item in
such period and (v) any cash payment received during such period and not otherwise included in
Consolidated Net Income for such period in respect of non-cash items deducted during a prior period
pursuant to clause (b)(i) below and minus (b)(i) all non-cash items increasing Consolidated
Net Income for such period and (ii) all cash payments made during such period in respect of
non-cash charges or other non-recurring expenses added to Consolidated Net Income pursuant to
clause (a)(iv) above in a prior period; provided, however, that the results of
operations of all Persons in which the Borrower or any Restricted Subsidiary has an ownership
interest (other than such Restricted Subsidiary) shall only be included in Consolidated EBITDA to
the extent that the Borrower or any other Loan Party actually receives cash distributions in
respect of its ownership interests in such Person during such period for which Consolidated EBITDA
is being calculated (provided that in the event of any Disposition
pursuant to Section 7.05(i) or (j), any cash distributions received by the Borrower or
any other Loan Party in respect of such Disposed of interest under Section 7.05(i) or (j)
included in the calculation of Consolidated EBITDA shall be deducted therefrom for such period).
Consolidated EBITDA shall be calculated for each period, on a pro forma basis, after giving effect
to, without



9









 







duplication, any Permitted Acquisition occurring during each period commencing on the
first day of such period to and including the date of such transaction to be included in
Consolidated EBITDA, as the case may be (the “Reference Period”) and, regardless of whether
or not such acquired Person or property was operated during such Reference Period, as if such
Permitted Acquisition occurred or was completed on the first day of the Reference Period. In
making the calculation contemplated by the preceding sentence, Consolidated EBITDA generated or to
be generated by such acquired Person or by such acquired property shall be determined in good faith
by the Borrower based on reasonable assumptions; provided, however, that (A) such pro forma
calculations shall be reasonably acceptable to the Administrative Agent if such pro forma
adjustments to Consolidated EBITDA exceed twenty percent (20%) of the Consolidated EBITDA for the
Borrower and its Restricted Subsidiaries on a consolidated basis prior to such adjustment and (B)
no such pro forma adjustments shall be allowed unless, not less than thirty (30) days after the end
of such period, the Administrative Agent shall have received such written documentation as the
Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to
the Administrative Agent, supporting such pro forma adjustments.



     “Consolidated Indebtedness” means, as of any date of determination, for the Borrower
and its Restricted Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course of business), (e)
Attributable Indebtedness, (f) without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the
Borrower or any Restricted Subsidiary, and (g) all Indebtedness of the types referred to in clauses
(a) through (f) above of any partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which the Borrower or a Restricted Subsidiary
is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to
the Borrower or such Restricted Subsidiary; provided, however, that any
Indebtedness of any joint venture included in the calculation of Consolidated Indebtedness by
virtue of the Borrower’s or any Restricted Subsidiary’s liability therefor pursuant to its equity
or ownership interest therein shall be limited to the product obtained by multiplying (x) the
aggregate principal amount of such Indebtedness by (y) the percentage corresponding to the
Borrower’s or such Restricted Subsidiary’s equity or other ownership interest in such joint venture
unless such joint venture is a general partnership in which case the limitation provided herein
shall not be applicable.



     “Consolidated Interest Charges” means, for any period, for the Borrower and its
Restricted Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments,
debt discount, fees, charges and related expenses of the Borrower and its Restricted Subsidiaries
in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in
accordance with GAAP, and (b) the portion of rent expense of the Borrower and its Restricted
Subsidiaries with respect to such period under capital leases that is treated as interest in
accordance with GAAP.



10









 





     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such
date to (b) Consolidated Interest Charges for such period.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended for which the Borrower has delivered financial statements
pursuant to Section 6.01(a) or (b).



     “Consolidated Net Income” means, for any period, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, the net income of the Borrower and its Restricted
Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period.



     “Consolidated Subsidiary” means, at any date with respect to any Person, any
Subsidiary or other entity the accounts of which would be consolidated with those of such Person in
its consolidated financial statements if such financial statements were prepared as of such date.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



     “Control” has the meaning specified in the definition of “Affiliate.”



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if
any, applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest
rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan
plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to
the Applicable Rate plus 2% per annum, in all cases to the fullest extent permitted by
applicable Laws.



     “Defaulting Lender” means any Lender (a) that has failed to fund any portion of the
Revolving Credit Loans or participations in L/C Obligations or participations in Swing Line Loans
required to be funded by it hereunder within one Business Day of the date required to be funded by
it hereunder, (b) that has otherwise failed to pay over to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within one Business Day



11









 







of the date
when due, unless the subject of a good faith dispute, or (c) as to which a Distress Event has
occurred and not been rescinded, dismissed, mitigated as provided in the definition of “Distress
Event,” or terminated, as applicable.



     “Designated Customer” means a Person set forth in Schedule 1.01(b) or any
supplement to Schedule 1.01(b) delivered by the Borrower to the Administrative Agent;
provided that the long term unsecured and unguaranteed debt of each Person included in any
such supplement is rated at least A- by S&P or at least A3 by Moody’s or such Person is otherwise
approved by the Required Lenders. The Administrative Agent, acting at the direction of the
Required Lenders, may at any time remove any Person from Schedule 1.01(b) (other than any
Person then satisfying the ratings requirements set forth in this definition) upon written notice
thereof to the Borrower. The revocation by the Required Lenders of approval of any Designated
Customer shall be effective prospectively and shall not affect any Eligible Receivables with
respect to which such Designated Customer is the entity obligated to make payments with respect to
such Eligible Receivables, including any guarantor thereof, included in the Borrowing Base at the
time such revocation is effective.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.



     “Disproportionate Facility Risk” means, as of any date of determination, (a) with
respect to any Lender and any Defaulting Lender, the amount as of such date allocable to such
Defaulting Lender by which the Outstanding Amount of the Revolving Credit Loans of a Lender exceeds
such Lender’s Pro Rata Share of the Outstanding Amount of all Revolving Credit Loans as of such
date, (b) with respect to the L/C Issuer and any Defaulting Lender or Impacted Lender, the sum of
(i) all unfunded participations in L/C Obligations at such date and (ii) without duplication, all
unfunded Base Rate Loans at such date that have been requested but not funded under Section
2.03 to refinance L/C Obligations, in each case allocable to such Defaulting Lender or such
Impacted Lender, other than L/C Obligations as to which Cash Collateral or other credit support
satisfactory to the Administrative Agent and the L/C Issuer has been provided, and (c) with respect
to the Swing Line Lender and any Defaulting Lender or Impacted Lender, all unfunded participations
in Swing Line Loans at such date allocable to such Defaulting Lender or such Impacted Lender, other
than Swing Line Loans as to which Cash Collateral or other credit support satisfactory to the
Administrative Agent and the Swing Line Lender has been provided.



     “Distress Event” means, with respect to any Person (each, a “Distressed
Person”), a voluntary or involuntary case (or comparable proceeding) with respect to such
Distressed Person under the Bankruptcy Code or any comparable bankruptcy, insolvency, receivership,
reorganization or other debtor relief laws, or a custodian, conservator, receiver or similar
official is appointed for such Distressed Person or for any substantial part of such Distressed
Person’s assets, or such Distressed Person makes a general assignment for the benefit of creditors or
is otherwise adjudicated as, or determined by any Governmental Authority having regulatory
authority over such Distressed Person or its assets to be, insolvent or bankrupt, unless the
Administrative Agent, the L/C Issuer and the Swing Line Lender have concluded in good faith that
the risk of creating Disproportionate Facility Risk, as a result of any of the events or



12









 







circumstances described above, has been sufficiently mitigated, so as to permit the removal of such
designation.



     “Dollar” and “$” mean lawful money of the United States.



     “Eligible Assignee” has the meaning specified in Section 10.06(g).



     “Eligible Commercial Receivable” means, at any date of determination thereof, any
Eligible Receivable which is identified as a “trade receivable” (and not as a “crude oil
receivable”) on the balance sheet of the Borrower and its Consolidated Subsidiaries at such date
(or would be so identified if such balance sheet were prepared at such date).



     “Eligible Government Contract” means a contract between the Borrower or any Guarantor
and the U.S. Government; provided that if such contract calls for total payments by the
U.S. Government in excess of $1,000,000, then such contract shall only be an Eligible Government
Contract if such contract:




     (a) is set forth in Schedule 1.01(c) (or in a supplement to Schedule
1.01(c) delivered by the Borrower to the Administrative Agent not less than three
Business Days prior to any delivery of a Borrowing Base Certificate in which such contract
is sought to be included);




     (b) does not include a provision, substantially to the effect of Federal Acquisition
Regulation 52.232-24, prohibiting assignment of amounts due from the U.S. Government under
such contract; and




     (c) is the subject of an instrument of assignment duly completed and executed by the
Borrower or the applicable Guarantor party to such contract in the form specified in the
Guarantee and Collateral Agreement or otherwise in form and substance reasonably
satisfactory to the Administrative Agent and a notice of assignment duly completed and
executed by the Administrative Agent, in the form specified in the Guarantee and Collateral
Agreement or otherwise in form and substance reasonably satisfactory to the Administrative
Agent, in each case and for each such notice, delivered to the U.S. Government for
acknowledgment by the U.S. Government, not less than three Business Days prior to any
delivery of a Borrowing Base Certificate in which such contract is sought to be included.



     “Eligible Government Receivable” means, at any date of determination thereof, any
Eligible Receivable created pursuant to an Eligible Government Contract.



     “Eligible Inventory” means an amount equal to the lower of (i) the sum of the net
values of the inventory determined on a FIFO basis or (ii) the Market Value of petroleum products
(other than petroleum products located at a service station or other retail outlet), as to which
the Borrower or any Guarantor has title, as to which the Administrative Agent, for the benefit of
the Secured Parties, has a valid and perfected first priority security interest and as to which the
Borrower has furnished to the Administrative Agent reasonably detailed information in a Borrowing
Base Certificate, determined after taking into account all charges and liens (other than those of
the Administrative Agent, for the benefit of the Lenders, or those of producers arising



13









 







under the New Mexico Oil and Gas Products Lien Act or any similar statute in any other jurisdiction or under
section 9-319 of the UCC in effect in the States of Texas, Kansas, Montana, Utah and Wyoming or any
other applicable jurisdiction, held in suspense or in existence less than 90 days from the date of
creation thereof, in either case in respect of obligations of the Borrower or the applicable
Guarantor not yet overdue), of all kinds against such inventory, reductions in market value
thereof, and transportation, processing and other handling charges affecting the value thereof, and
excluding therefrom any such petroleum products in the possession of (or located in or upon assets
that are owned or otherwise controlled by) any Person other than a Loan Party (other than pursuant
to Pipeline Transportation Services being provided by such Person) with an aggregate value (as
determined pursuant to clause (i) or (ii) above, as applicable) in excess of $10,000,000, unless
and to the extent that the Borrower has delivered a duly executed collateral access agreement (or
similar document) in respect thereof in form and substance reasonably satisfactory to the
Administrative Agent, all as determined by the Administrative Agent in its sole discretion using
its reasonable credit judgment, which, absent manifest error, shall be final and binding upon the
Borrower.



     “Eligible Product In Transit” means petroleum products which any Person is obligated
under contract to supply to the Borrower or any Guarantor, the payment for which is backed by a
Letter of Credit issued hereunder, valued at the lower of (i) the contract price on a FIFO basis or
(ii) Market Value, as if such products were inventory of the Borrower or the applicable Guarantor,
as to which the Administrative Agent, for the benefit of the Secured Parties, has a valid and
perfected first priority security interest in the related contract or other rights of the Borrower
or such Guarantor and as to which the Borrower has furnished to the Lenders reasonably detailed
information in a Borrowing Base Certificate, determined after taking into account all charges and
liens (other than those of the Lenders or those of producers arising under the New Mexico Oil and
Gas Products Lien Act or any similar statute in any other jurisdiction or under section 9-319 of
the UCC in effect in the States of Texas, Kansas, Montana, Utah and Wyoming or any other applicable
jurisdiction, held in suspense or in existence less than 90 days from the date of creation thereof,
in either case in respect of obligations of the Borrower or the applicable Guarantor not yet
overdue), of all kinds against such products, reductions in market value thereof, and
transportation, processing and other handling charges affecting the value thereof, all as
determined by the Administrative Agent in its sole discretion using its reasonable credit judgment,
which absent manifest error, shall be final and binding upon the Borrower.



     “Eligible Receivable” means, at any date of determination thereof, any Receivable
other than the following:




     (a) solely in the case of a Receivable created pursuant to an Eligible Government
Contract, any such Receivable for which all necessary government funding has not been
appropriated at the time such Receivable is invoiced;




     (b) any Receivable that is not invoiced and payable by the applicable Account Debtor in
Dollars unless the currency exchange risk in respect of such Receivable has been hedged to
the reasonable satisfaction of the Required Lenders;




     (c) any Receivable due from an Account Debtor



14









 






               (i) organized under the laws of any jurisdiction other than a jurisdiction located in
the United States or Canada, or




               (ii) whose principal place of business is located in any jurisdiction other than a
jurisdiction located in the United States or Canada, other than, in either case,




               (w) any Receivable to the extent the full amount thereof is supported by a
Qualifying Letter of Credit;




               (x) Receivables as to which Pemex or any Affiliate of Pemex is the applicable
Account Debtor in an aggregate amount not to exceed $5,000,000 for all such
Receivables,




               (y) Receivables as to which the Administrative Agent, for the benefit of the
Secured Parties, has been provided with a perfected first priority lien (as
confirmed by a favorable opinion of local counsel in the applicable jurisdiction in
form and substance reasonably satisfactory to the Administrative Agent), and




               (z) any Receivable that is invoiced to and paid from an office of the
applicable Account Debtor located within the United States;




               (d) any Receivable that does not comply with all applicable legal requirements,
including, without limitation, all laws, rules, regulations and orders of any Governmental
Authority;




               (e) any Receivable whose original due date is more than 90 days after the date of the
original issuance of the invoice therefor;




               (f) any Receivable that remains unpaid for more than 90 days from the original due date
specified at the time of the original issuance of the invoice therefor;




               (g) any Receivables from any Account Debtor if the total value of all Receivables owing
from such Account Debtor which remain unpaid for more than 90 days from the original due
date specified at the time of the original issuance of the invoice therefor and which are
not being contested in good faith exceeds 10% of the value of all such Receivables owing
from such Account Debtor;




               (h) any Receivable arising outside the ordinary course of business of the Borrower and
the Guarantors;




               (i) any Receivable as to which the applicable Account Debtor is a Person other than the
U.S. Government, an Investment Grade Customer, or a Designated Customer, to the extent the
aggregate amount of all Receivables due from such Account Debtor at such date exceeds 5% of
the aggregate amount of the Borrowing Base at such date;



15









 






               (j) any Receivable as to which the applicable Account Debtor is an Investment Grade
Customer, to the extent the aggregate amount of all Receivables due from such Account Debtor
at such date exceeds 10% of the aggregate amount of the Borrowing Base at such date;




               (k) any Receivable as to which the applicable Account Debtor is a Designated Customer,
to the extent the aggregate amount of all Receivables due from such Account Debtor at such
date exceeds 15% of the aggregate amount of the Borrowing Base at such date;




               (l) any Receivable evidenced by an “instrument” (as defined in the UCC) not in the
possession of the Administrative Agent;




               (m) any Receivable that is not an “account” as defined in the UCC;




               (n) any Receivable that is not subject to a perfected first priority Lien in favor of
the Administrative Agent, for the benefit of the Secured Parties (under all applicable laws
and subject only to Permitted Liens), including without limitation any Receivable which
constitutes an “account” under the UCC subject to subsection (5) of Section 9-103 of the UCC
in effect in any applicable jurisdiction and with respect to which Receivable all necessary
actions (including without limitation the filing of all necessary UCC-1 financing statements
in the proper form) necessary to perfect such Lien have not been taken;




               (o) any Receivable as to which the Borrower or any Guarantor does not have good title,
free and clear of all Liens other than Permitted Liens;




               (p) any Receivable that is not at all times the legal and valid payment obligation of
the Account Debtor thereon, enforceable against such Account Debtor in accordance with its
terms, subject to the effect of any applicable Debtor Relief Laws;




               (q) any Receivable which is subject to any asserted offset or other defense but only to
the extent of such offset or other defense;




               (r) any Receivable from an Account Debtor that to the Borrower’s knowledge is the
subject of a bankruptcy, insolvency or similar proceeding;




               (s) any Receivable prohibiting assignment of such Receivable if the U.S. Government is
the Account Debtor; and




               (t) any Receivable from an Account Debtor who is an Affiliate of the Borrower or any
Guarantor (other than Receivables as to which any MLP Party is the applicable Account Debtor in an aggregate amount not to exceed $7,500,000 for all such
Receivables).



     All Eligible Receivables shall be determined after deducting from the aggregate amount thereof
all payments, adjustments or credits applicable thereto (but without any deduction for credits or
adjustments backed by a Letter of Credit issued hereunder); provided that the amount



16









 







of Eligible Receivables from any Account Debtor shall be reduced by the aggregate net dollar amount of
all accounts payable to such Account Debtor (for the avoidance of doubt, excluding any Affiliates
of such Account Debtor that are separate legal entities). A Receivable which is an Eligible
Receivable, but which subsequently fails to meet any of the foregoing requirements shall
immediately cease to be an Eligible Receivable.



     “Enhanced Reporting Level” has the meaning specified in Section 6.13(a).



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to Hazardous Materials, human or worker exposure to Hazardous Materials, air emissions and
discharges to soils, surface or subsurface waters or public wastewater treatment systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, any other Loan Party or any of their respective Restricted Subsidiaries directly or
indirectly resulting from or based upon (a) violation of 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 or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed on any such Loan Party with respect to any of the
foregoing.



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



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.



17









 





     “Eurodollar Rate” means:



     (a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal
to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters
(or other commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest Period or (ii) if such rate is
not available at such time for any reason, the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to such Interest Period would
be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period; and



     (b) for any interest calculation with respect to a Base Rate Loan, the rate per annum equal
to (i) BBA LIBOR, at approximately 11:00 a.m. London time, two London Business Days prior to the
date of determination (provided that if the date of determination is not a London Business Day, the
next preceding London Business Day) for Dollar deposits being delivered in the London interbank
market for a term of one-month commencing that day or (ii) if such published rate is not available
at such time for any reason, the rate per annum determined by the Administrative Agent to be the
rate at which deposits in Dollars for delivery on the date of determination in same day funds in
the approximate amount of the Base Rate Loan being made or maintained by Bank of America and with a
term equal to one-month would be offered by Bank of America’s London Branch to major banks in the
London interbank Eurodollar market at their request at the date and time of determination.



     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.



     “Event of Default” means each of the conditions or events set forth in Section
8.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder or any other Loan Document, (a) taxes imposed on or measured by its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by
the jurisdiction (or any political subdivision thereof) 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 or
any other jurisdiction described in clause (a), (c) any backup withholding that is required by the Code to be withheld from amounts payable to a Lender that has failed
to comply with clause (A) of Section 3.01(e)(ii), and (d) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section 10.14), any
United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign
Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or



18









 







inability (other than as a result of a Change in Law) to comply with clause (B) of Section
3.01(e)(ii), 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
3.01(a)(ii).



     “Existing Letters of Credit” means each letter of credit set forth on Schedule
1.01(d).



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



     “Fee Letter” means the amended and restated fee letter agreement, dated April 6, 2009,
among the Borrower, the Administrative Agent and the Arranger.



     “FIFO” means the first-in, first-out method of accounting.



     “First Restatement Effective Date” means March 14, 2008.



     “First Restatement Lenders” has the meaning specified in the introductory paragraph
hereto.



     “First Restatement Loans” has the meaning specified in the introductory paragraph
hereto.



     “Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction
other than the United States of America, any State thereof or the District of Columbia.



     “FRB” means the Board of Governors of the Federal Reserve System of the United States.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the
date of determination, consistently applied.



     “Governmental Authority” means the government of the United States or any other
nation, or of 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



19









 







government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect
(including, without limitation, any obligations arising under the Indemnification Agreements), (i)
to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



     “Guarantee and Collateral Agreement” means the Guarantee and Collateral Agreement
entered into by the Borrower, each Guarantor and the Administrative Agent, substantially in the
form of Exhibit E.



     “Guarantors” means, collectively, the Restricted Subsidiaries of the Borrower that now
or hereafter become a party to the Guarantee and Collateral Agreement in accordance with
Section 6.12. The MLP Parties shall not be Restricted Subsidiaries and shall not become
parties to the Guarantee and Collateral Agreement.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



     “HEP LP” means HEP Logistics Holdings, L.P., a Delaware limited partnership.



     “Holly Energy Partners” means Holly Energy Partners, L.P., a Delaware limited
partnership, a Subsidiary of the Borrower as of the Second Restatement Effective Date.



20









 





     “Holly — MidCon” means Holly Refining & Marketing — MidCon L.L.C., a Delaware limited
liability company, a Subsidiary of the Borrower as of the Second Restatement Effective Date.



     “Holly UNEV” means Holly UNEV Pipeline Company, a Delaware corporation and a
Subsidiary of the Borrower as of the Second Restatement Effective Date.



     “Impacted Lender” means any Lender (a) that has given verbal or written notice to the
Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender, or has otherwise
publicly announced, that such Lender is or believes it will become a Defaulting Lender, (b) as to
which the Administrative Agent, the L/C Issuer or the Swing Line Lender has a good faith belief
that such Lender has defaulted in fulfilling its funding or payment obligations (as a lender,
administrative or other agent, letter of credit issuer or issuer of bank guarantees) under any
other syndicated credit facility or (c) to the extent any Affiliate of such Lender, of which the
Lender is a direct or indirect Subsidiary, has become the subject of a bankruptcy or insolvency
proceeding, unless in each case, the Administrative Agent, the L/C Issuer and the Swing Line Lender
have concluded in good faith that the events and circumstances giving rise to such Lender’s
designation as an “Impacted Lender” have been rescinded or cured, or the risk of creating
Disproportionate Facility Risk has been sufficiently mitigated, so as to permit the removal of such
designation.



     “Increase Effective Date” has the meaning specified in Section 2.15(b).



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;




     (c) net obligations of such Person under any Swap Contract;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;




     (f) capital leases and Synthetic Lease Obligations; and




     (g) all Guarantees of such Person in respect of any of the foregoing.



21









 





     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person; provided, however, that
any Indebtedness of any joint venture included in the calculation of Consolidated Indebtedness by
virtue of the Borrower’s or any Restricted Subsidiary’s liability therefor pursuant to its equity
or ownership interest therein shall be limited to the product obtained by multiplying (x) the
aggregate principal amount of such Indebtedness by (y) the percentage corresponding to the
Borrower’s or such Restricted Subsidiary’s equity or other ownership interest in such joint venture
unless such joint venture is a general partnership in which case the limitation provided herein
shall not be applicable. The amount of any net obligation under any Swap Contract on any date
shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any
capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.



     “Indebtedness Period” has the meaning set forth on Schedule 1.01(e).



     “Indemnification Agreements” means (i) that certain Indemnification Agreement dated as
of July 8, 2005 (as amended, amended and restated, supplemented or otherwise modified from time to
time), executed by Navajo Pipeline Co., L.P., a Delaware limited partnership, for the benefit of
HEP LP, (ii) that certain Indemnification Agreement dated as of February 29, 2008 (as amended,
amended and restated, supplemented or otherwise modified from time to time), executed by Navajo
Pipeline Co., L.P., for the benefit of HEP LP, (iii) that certain Indemnification Agreement dated
as of February 29, 2008 (as amended, amended and restated, supplemented or otherwise modified from
time to time), executed by Navajo Refining Company, L.L.C., a Delaware limited liability company,
for the benefit of HEP LP, (iv) that certain Indemnification Agreement dated as of February 29,
2008 (as amended, amended and restated, supplemented or otherwise modified from time to time),
executed by Woods Cross Refining Company, L.L.C., a Delaware limited liability company, for the
benefit of HEP LP and (v) any other indemnification agreement (as amended, amended and restated,
supplemented or otherwise modified from time to time), for the benefit of HEP LP, entered into by a
Loan Party pursuant to the terms of the Asset Contribution after the date hereof.



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



     “Indemnitee” has the meaning specified in Section 10.04(b).



     “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swing Line Loans, the last Business Day of each
March, June, September and December and the Maturity Date (with Swing Line Loans being deemed made
under the Revolving Credit Loans for purposes of this definition).



     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate



22









 







Loan and ending on the date 7 or 14 days or one, two, three or, to the extent available from each
Lender, six or nine months thereafter, as selected by the Borrower in its Loan Notice;
provided that:




     (i) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (ii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and




     (iii) no Interest Period shall extend beyond the Maturity Date.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit or one or more refineries. For
purposes of covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value of such Investment,
excluding any return of capital with respect to such Investment that has actually been received by
the Borrower or any other Loan Party in cash, Cash Equivalents or Cash Investments or has been
converted into cash, Cash Equivalents or Cash Investments by the Borrower or any other Loan Party.



     “Investment Grade Customer” means any Account Debtor other than the U.S. Government or
a Designated Customer (i) whose long term unsecured and unguaranteed debt is rated at least “BBB-”
by S&P or at least “Baa3” by Moody’s or (ii) the direct or indirect parent of which is so rated by
S&P or Moody’s; provided that, with respect to an Account Debtor described in clause (ii)
above, such Account Debtor must be approved as an “Investment Grade Customer” by the Administrative
Agent, acting in its sole discretion after consultation with the Lenders, which approval may be
revoked by the Administrative Agent, acting in its sole discretion after consultation with the
Lenders, at any time upon written notice thereof to the Borrower. The revocation by the
Administrative Agent of its approval of any Account Debtor described in clause (ii) above as an
“Investment Grade Customer” shall be effective prospectively and shall not affect any Eligible
Receivables with respect to which such Investment Grade Customer is the Account Debtor included in the Borrowing Base at the time
such revocation is effective.



     “IRS” means the United States Internal Revenue Service.



23









 





     “ISP” means, with respect to any standby Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Restricted Subsidiary) or in favor the L/C Issuer and relating to any such
Letter of Credit.



     “Joint Venture Investments” means Investments in joint ventures or similar entities or
Guarantors that are general partners of a joint venture or similar entity; provided that the
applicable joint venture or similar entity engages in a business permitted under Section
7.07.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Share.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



     “L/C Obligations” means, as at any date of determination, the aggregate undrawn amount
of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts,
including all L/C Borrowings. For all purposes of this Agreement, if on any date of determination
a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason
of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”
in the amount so remaining available to be drawn.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the L/C Issuer and the Swing Line Lender.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



24









 





     “Letter of Credit” means any letter of credit issued hereunder and shall include the
Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby
letter of credit.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business
Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(i).



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, and any financing lease having
substantially the same economic effect as any of the foregoing).



     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Revolving Credit Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, each Note, each Issuer Document, the Fee
Letter, and the Security Documents.



     “Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a conversion of
Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to
Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit
A.



     “Loan Parties” means, collectively, the Borrower and each Guarantor.



     “Market Value” means the fair market value of petroleum products determined by
reference to indices and data acceptable to the Administrative Agent, after consultation with the
Lenders.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or
condition of the Borrower or the Borrower and its Restricted Subsidiaries taken as a whole; (b) a
material impairment of the ability of the Borrower or any Loan Party that is a Material Subsidiary
to perform its obligations under any Loan Document to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability against the Borrower
or any Loan Party that is a Material Subsidiary of any Loan Document to which it is a party.



     “Material Subsidiary” means any Subsidiary, the assets of which comprise more than 5%
of the total assets of the Borrower and its Subsidiaries on a consolidated basis (in the case of a Subsidiary that is not wholly owned directly or indirectly by the Borrower, determined on a
pro rata basis based on the Borrower’s or the applicable Subsidiary’s relative ownership
interests), as determined in accordance with GAAP.



25









 





     “Maturity Date” means the earlier of (a) March 14, 2013 and (b) the date of
termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer
to make L/C Credit Extensions pursuant to Section 8.02.



     “MLP Documents” means (a) the Contribution, Conveyance and Assumption Agreement, (b)
the Omnibus Agreement, and (c) the Pipelines and Terminals Agreement, in each case executed by the
Borrower and certain of its Subsidiaries.



     “MLP Parties” means, collectively, Holly Logistic Services, L.L.C., HEP LP, HEP
Logistics GP, L.L.C., Holly Energy Partners and each of its Subsidiaries.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Note” means any promissory note made by the Borrower in favor of a Lender, to the
extent requested by such Lender pursuant to Section 2.12(a), evidencing Revolving Credit
Loans or Swing Line Loans, as the case may be, made by such Lender substantially in the form of
Exhibit B.



     “Obligations” means (a) all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect
to any Loan or Letter of Credit; (b) all amounts constituting Cash Management Obligations; and (c)
all amounts owing by any Loan Party to a Qualified Counterparty that is a Secured Party in respect
of any interest rate protection Swap Contract, in each case, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the commencement by or against
any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.



     “Original Credit Agreement” has the meaning specified in the introductory paragraph
hereto.



     “Original Lenders” has the meaning specified in the introductory paragraph hereto.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or



26









 







organization and, if applicable, any certificate or articles of formation or organization of such
entity.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies (and interest, fines, penalties or other
additions to tax related thereto) arising from any payment made hereunder or under any other Loan
Document or from the execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.



     “Outstanding Amount” means (i) with respect to Revolving Credit Loans and Swing Line
Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Loans, occurring on such date; and (ii) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after
giving effect to any L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on such date.



     “Participant” has the meaning specified in Section 10.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permitted Acquisition” means any transaction or series of related transactions for
the direct or indirect acquisition of all or substantially all of the property of any Person, or of
any business unit or refineries of any Person; the acquisition of in excess of 50% of the capital
stock of any Person, and otherwise causing such Person to become a Subsidiary of such Person; or
the merger or consolidation or any other combination with any Person, if each of the following
conditions is met:




     (i) no Default then exists or would result therefrom;




     (ii) after giving effect to such transaction or series of related transactions on a pro
forma basis, the Borrower shall be in compliance with all covenants set forth in Section
7.11 as of the last day of the applicable period covered by the most recently delivered
Compliance Certificate (for purposes of Section 7.11, as if such transaction or
series of related transactions, and all other Permitted Acquisitions consummated since the
first day of such applicable period, had occurred on the first day of such applicable
period);




     (iii) no Loan Party shall, in connection with any such transaction or series of
transactions, assume or remain liable with respect to any Indebtedness of the related



27









 







seller or the business, Person or properties acquired except to the extent permitted under
Section 7.03;




     (iv) the Person or business to be acquired shall be, or shall be engaged in, a business
of the type that the Borrower and its Subsidiaries are permitted to be engaged in under
Section 7.07 and the property acquired in connection with any such transaction or
series of transactions to be included in the Borrowing Base shall be made subject to the
Lien of the Guarantee and Collateral Agreement in a manner reasonably satisfactory to the
Administrative Agent and shall be free and clear of any Liens, other than Permitted Liens;




     (v) any Person that becomes a Restricted Subsidiary of the Borrower in connection with
such transaction or series of transactions shall have executed a supplement to the Guarantee
and Collateral Agreement and become a Loan Party hereunder on terms and conditions
satisfactory to the Administrative Agent;




     (vi) the board of directors of the Person to be acquired shall not have indicated
publicly its opposition to the consummation of such acquisition unless such opposition has
been publicly withdrawn;




     (vii) all transactions in connection therewith shall be consummated in all material
respects in accordance with all applicable laws of all applicable Governmental Authorities;




     (viii) to the extent the aggregate Acquisition Consideration paid or to be paid by the
Loan Parties in such proposed transaction or series of transactions exceeds $25,000,000 and
to the extent available, the Borrower shall have provided the Administrative Agent and the
Lenders with (A) audited financial statements for the last three fiscal years of the Person
or business to be acquired and unaudited financial statements thereof for the most recent
interim period, (B) updated projections for the Borrower after giving effect to such
transaction or series of transactions, and (C) such other information and data relating to
such transaction or series of transactions or the Person or business to be acquired as may
be reasonably requested by the Administrative Agent; and




     (ix) to the extent the aggregate Acquisition Consideration paid or to be paid by the
Loan Parties in such proposed transaction or series of transactions exceeds $25,000,000, at
least 5 Business Days prior to the date of consummation of the proposed transaction or
series of transactions, the Borrower shall have delivered to the Administrative Agent and
the Lenders a certificate signed by a Responsible Officer of the Borrower certifying that
(A) such transaction or series of transactions complies with this definition (which shall
have attached thereto reasonably detailed backup data and calculations showing such
compliance), and (B) such transaction or series of transactions would not reasonably be
expected to result in a Material Adverse Effect.



28









 





     Notwithstanding anything to the contrary contained herein, the acquisition of the Specified
Assets shall be considered a Permitted Acquisition hereunder; provided that such
acquisition is consummated in accordance with each of the conditions set forth in Section
6.17.



     “Permitted Holders” means (a) Lamar Norsworthy, David Norsworthy, Nona Barrett, Betty
Regard, Margaret Simmons and Suzanne Bartolucci, (b) the parents, spouses, children and other
lineal descendants of any Person listed in clause (a) and (c) any estate or any trust established
for the benefit of any one or more of the Persons described in clauses (a) and (b).



     “Permitted Liens” has the meaning specified in Section 7.01.



     “Permitted Unsecured Indebtedness” means unsecured Indebtedness of the Borrower and/or
its Restricted Subsidiaries; provided that (a) such Indebtedness does not mature or require
any scheduled payments in excess of 1% per annum of the principal amount thereof prior to June 30,
2013, (b) such Indebtedness bears no greater than a market interest rate as of the time of its
issuance or incurrence (as determined in good faith by the Borrower), (c) no indenture or other
agreement governing such Indebtedness contains (i) maintenance financial covenants or (ii)
covenants or events of default that are more restrictive on the Borrower or any of its Restricted
Subsidiaries than those contained in this Agreement are on the Borrower and its Restricted
Subsidiaries, and (d) after giving effect to the issuance or incurrence of such Indebtedness on a
pro forma basis, the Borrower shall be in compliance with all covenants set forth in Section
7.11 as of the last day of the applicable period covered by the most recently delivered
Compliance Certificate (for purposes of Section 7.11, as if such Indebtedness, and all
other Permitted Unsecured Indebtedness issued or incurred since the first day of such applicable
period, had been issued or incurred on the first day of such applicable period).



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



     “Pipeline Transportation Services” means pipeline transportation services in respect
of petroleum products provided to the Borrower or a Restricted Subsidiary pursuant to which the
provider of such services delivers such petroleum products from a designated point of origination
to a delivery point specified by the Borrower or such Restricted Subsidiary; provided that
(i) any Instrument, Negotiable Document or Tangible Chattel Paper (in each case, as defined in the
Guarantee and Collateral Agreement) evidencing or representing such petroleum products shall have
been delivered to the Administrative Agent in accordance with, and to the extent required by,
Section 5.2(a) of the Guarantee and Collateral Agreement and (ii) all actions shall have
been taken as required by Section 5.2(b) of the Guarantee and Collateral Agreement with
respect to any related Electronic Chattel Paper (as defined in the Guarantee and Collateral
Agreement).



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.



     “Pledged Cash” means, on any date, the aggregate amount of cash and Cash Equivalents
on deposit in the Collateral Account on such date; provided that the Borrower shall at all
times



29









 







maintain cash and Cash Equivalents in one or more Collateral Accounts in an amount not less
than the amount specified as “Pledged Cash” in the most recently delivered Borrowing Base
Certificate.



     “Pro Rata Share” means, with respect to each Lender at any time, a fraction (expressed
as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of
the Commitment of such Lender at such time and the denominator of which is the amount of the
Aggregate Commitments at such time; provided that if the commitment of each Lender to make
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02, then the Pro Rata Share of each Lender shall be determined based
on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect
to any subsequent assignments made pursuant to the terms hereof. The initial Pro Rata Share of
each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.



     “Public Lender” has the meaning specified in Section 6.02.



     “Qualified Counterparty” has the meaning given to that term in the Guarantee and
Collateral Agreement.



     “Qualifying Letter of Credit” means (a) an irrevocable documentary letter of credit
that (i) shall be in form and substance satisfactory to the Administrative Agent, (ii) shall be in
the possession of, been validly assigned to (with the consent of the issuer of such letter of
credit), and is directly drawable by the Administrative Agent, (iii) shall be issued by a
commercial bank domiciled in the United States rated at least A (or then equivalent grade, in each
case with stable outlook) by S&P and A2 (or then equivalent grade, in each case with stable
outlook) by Moody’s with combined capital and surplus of at least $1,000,000,000; (iv) shall be
denominated in Dollars; and (v) no certification, prior notice or third-party verification shall be
required prior to the beneficiary’s or assignee’s ability to draw on such letter of credit;
provided that to the extent such letter of credit or the issuer thereof no longer meets any
requirement set forth in clauses (ii) through (v) above, or to the extent such letter of credit
shall have expired by its terms, such letter of credit shall no longer be considered a Qualifying
Letter of Credit until a replacement letter of credit shall be issued meeting each of the
requirements of clauses (ii) through (v) hereof, or (b) any letter of credit otherwise approved in
writing by the Administrative Agent (in its discretion).



     “Reaffirmation And Assumption Agreement” means the First Amendment to Guarantee and
Collateral Agreement and Reaffirmation and Assumption Agreement entered into by the Borrower, each
Guarantor and the Administrative Agent, substantially in the form of Exhibit H.



     “Receivable” means, at any date of determination thereof, the amount of the unpaid
portion of an obligation, as stated in the invoice to a customer of the Borrower or any Guarantor
which the Borrower or such Guarantor has issued with respect thereto, in respect of goods sold or
services rendered in the ordinary course of business, which amount has been earned by performance
under the terms of the contract between the Borrower or such Guarantor and such customer relating
to such goods or services, as the case may be, net of any payables, credits, rebates or offsets
owed to such customer.



30









 





     “Register” has the meaning specified in Section 10.06(c).



     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.



     “Release Event” has the meaning set forth on Schedule 1.01(e).



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolving Credit Loans, a Loan Notice, (b) with respect to an L/C Credit Extension,
a Letter of Credit Application and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender (other than Defaulting Lenders who have fully funded
their respective portions of all outstanding Loans and provided Cash Collateral or other credit
support under Sections 2.03 and 2.04, as applicable, to eliminate Disproportionate
Facility Risk attributable to them with respect to Letters of Credit and Swing Line Loans) shall be
excluded for purposes of making a determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, any vice
president, chief financial officer, treasurer or assistant treasurer of a Loan Party. Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.



     “Restated Credit Agreement” has the meaning specified in the introductory paragraph
hereto.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other equity interest of the
Borrower 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, cancellation or termination of any such capital stock or other equity interest or of
any option, warrant or other right to acquire any such capital stock or other equity interest.



31









 





     “Restricted Subsidiary” means, at any time, any Subsidiary that is not an Unrestricted
Subsidiary at such time.



     “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest
Period made by each of the Lenders pursuant to Section 2.01.



     “Revolving Credit Loan” has the meaning specified in Section 2.01.



     “Sale and Leaseback Transaction” means any transaction or series of related
transactions in which the Borrower or any Subsidiary sells or transfers any of its property to any
other Person (other than to the Borrower or any Restricted Subsidiary) and concurrently with such
sale or transfer, or thereafter, rents or leases such transferred property or substantially similar
property from such Person.



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Second Restatement Effective Date” means April 7, 2009.



     “Secured Parties” has the meaning given to that term in the Guarantee and Collateral
Agreement.



     “Security Documents” means the Guarantee and Collateral Agreement, each other security
agreement, pledge, control agreement, consent and any other instrument or document executed and
delivered pursuant thereto.



     “Seller” has the meaning set forth on Schedule 1.01(e).



     “Shareholders’ Equity” means, as of any date of determination, consolidated
shareholders’ equity of the Borrower and its Subsidiaries or Restricted Subsidiaries, as
applicable, as of that date determined in accordance with GAAP.



     “Solvent” means that, with respect to any Person, as of any date of determination, (a)
the amount of the “present fair saleable value” of the assets of such Person will, as of such date,
exceed the amount of all “liabilities of such Person, contingent or otherwise,” as of such date, as
such quoted terms are determined in accordance with applicable federal and state Debtor Relief
Laws, (b) the present fair saleable value of the assets of such Person will, as of such date, be
greater than the amount that will be required to pay the liability of such Person on its debts as
such debts become absolute and matured, (c) such Person will not have, as of such date, an
unreasonably small amount of capital with which to conduct its business, (d) such Person will be
able to pay its debts as they mature and (e) such Person is not insolvent within the meaning of any
applicable legal requirement. For purposes of this definition, (i) “debt” means liability on a
“claim,” and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,



32









 







undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.



     “Specified Assets” has the meaning set forth on Schedule 1.01(e).



     “Specified Inventory” has the meaning set forth on Schedule 1.01(e).



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Borrower.



     “Supermajority Lenders” means, as of any date of determination, Lenders having more
than 66 2/3% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and
the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 66 2/3% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Supermajority Lenders.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and



33









 







termination value(s) determined in accordance therewith, such termination value(s), and (b)
for any date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
J.



     “Swing Line Sublimit” means an amount not in excess of $40,000,000. The Swing Line
Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “Syndication Agents” has the meaning specified in the introductory paragraph hereto.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority, including any
interest, additions to tax or penalties applicable thereto.



     “Total Outstandings” means the aggregate Outstanding Amount of all Revolving Credit
Loans, Swing Line Loans and all L/C Obligations.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.



     “UCC” means the Uniform Commercial Code, as in effect from time to time in the State
of New York or, to the extent otherwise specified, as in effect in such other jurisdiction or
jurisdictions.



     “U.S. Government” means the federal government of the United States or any agency or
instrumentality thereof, the obligations of which are backed by the full faith and credit of the
United States.



     “UNEV Pipeline” means UNEV Pipeline, LLC, a Delaware limited liability company.



34









 





     “United States” and “U.S.” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     “Unrestricted Subsidiary” means the MLP Parties, UNEV Pipeline and any other
Subsidiary designated by the board of directors of the Borrower as an “Unrestricted Subsidiary”
pursuant to Section 6.16 on or after the Second Restatement Effective Date;
provided, however, that no Indebtedness or other obligation (other than a Cash
Management Obligation) of any such Unrestricted Subsidiary is Guaranteed by the Borrower or any
Restricted Subsidiary, directly or indirectly, contingent or otherwise.



     1.02. Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:



     (a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.



     (b) (i) The words “herein,” “hereto,” “hereof” and “hereunder”
and words of similar import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.




     (ii) Article, Section, Exhibit and Schedule references are to the Loan Document in
which such reference appears.




     (iii) The term “including” is by way of example and not limitation.




     (iv) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.



     (c) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and
including.”



     (d) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03. Accounting Terms.



     (a) All accounting terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except
as otherwise specifically prescribed herein.



35









 





     (b) If at any time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall
so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (ii) the Borrower shall provide to the Administrative Agent and, as
applicable, the Lenders financial statements and other documents required under this Agreement or
as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio
or requirement made before and after giving effect to such change in GAAP.



     1.04. Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement
shall be calculated by dividing the appropriate component by the other component, carrying the
result to one place more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if there is no nearest
number).



     1.05. References to Agreements and Laws. Unless otherwise expressly provided herein, (a) references to Organization Documents,
agreements (including the Loan Documents) and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Loan Document; and (b) references to any Law shall
include all statutory and regulatory provisions consolidating, amending, replacing, supplementing
or interpreting such Law.



     1.06. Times of Day. Unless otherwise specified, all references herein to times of day shall be references to
Central time in the United States (daylight or standard, as applicable).



     1.07. Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be
deemed to be the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of
such Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01. Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Revolving Credit Loan”) to the Borrower from time to time, on any
Business Day during the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Commitment; provided, however, that after
giving effect to any Borrowing, (i) the Total Outstandings shall not exceed the lesser of (x) the
Borrowing Base and (y) the Aggregate Commitments, and (ii) the aggregate



36









 







Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender’s Commitment. Within the limits of each
Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.01, prepay under Section 2.06, and reborrow under this
Section 2.01. Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.



     2.02. Borrowings, Conversions and Continuations of Revolving Credit Loans.



     (a) Each Borrowing of Revolving Credit Loans, each conversion of Revolving Credit Loans from
one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each
such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on
the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.
Except as provided in Section 2.03(c), each Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each
Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a
Borrowing, a conversion of Revolving Credit Loans from one Type to the other, or a continuation of
Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the
case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which existing Revolving Credit
Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect
thereto. If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails
to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be
made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar
Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to
have specified an Interest Period of one month. Notwithstanding anything to the contrary herein, a
Swing Line Loan may not be converted to a Eurodollar Rate Loan.



     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each
Lender of the details of any automatic conversion to Base Rate Loans described in the preceding
subsection. In the case of a Borrowing of a Revolving Credit Loan, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions set



37









 







forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each
case in accordance with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date the Loan Notice with
respect to such Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the
proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and second, shall be made available to the Borrower as provided above.



     (c) During the existence of an Event of Default, no Loans may be requested as, converted to or
continued as Eurodollar Rate Loans without the consent of the Required Lenders.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s
prime rate used in determining the Base Rate promptly following the public announcement of such
change.



     (e) After giving effect to all Borrowings, all conversions of Revolving Credit Loans from one
Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall
not be more than twelve Interest Periods in effect with respect to Revolving Credit Loans.



     (f) Subject to the terms and conditions of this Agreement, the First Restatement Loans made
under the Restated Credit Agreement shall remain outstanding on and after the Second Restatement
Effective Date as Loans made pursuant to this Agreement, and the excess of the First Restatement
Lenders’ First Restatement Loans shall be deemed to have been repaid with funds available to the
Borrower, including all of the proceeds of Loans made pursuant to this Agreement on the Second
Restatement Effective Date, and each First Restatement Loan of the First Restatement Lender shall
be deemed to satisfy, dollar for dollar, the First Restatement Lender’s obligation to make Loans on
the Second Restatement Effective Date. Such First Restatement Loans shall on and after the Second Restatement Effective Date have all of the
rights and benefits of Loans as set forth in this Agreement and the other Loan Documents.



     2.03. Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the other Lenders set forth in this Section 2.03,
(1) from time to time on any Business Day during the period from the Second Restatement
Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit for
the account of the Borrower or its Restricted Subsidiaries, and to amend or extend Letters
of Credit previously issued by it, in accordance with subsection (b) below,



38









 







and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrower or its Restricted Subsidiaries and
any drawings thereunder; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (i) the Total Outstandings shall not exceed
the lesser of (x) the Borrowing Base and (y) the Aggregate Commitments and (ii) the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such
Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Commitment. Each request by the Borrower for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit
Extension so requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon and reimbursed.




     (ii) The L/C Issuer shall not issue any Letter of Credit, if:




     (A) subject to Section 2.03(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Required Lenders have approved such expiry date;




     (B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders have approved such expiry
date; or




     (C) after giving effect to such issuance, the Total Outstandings shall exceed
the lesser of (i) the Borrowing Base and (ii) the Aggregate Commitments.




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon the L/C Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Second Restatement
Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or
expense which was not applicable on the Second Restatement Effective Date and which
the L/C Issuer in good faith deems material to it;



39









 






     (B) the issuance of such Letter of Credit would violate any Laws or one or more
policies of the L/C Issuer applicable to letters of credit generally;




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial face amount less than $100,000;




     (D) such Letter of Credit is to be denominated in a currency other than
Dollars;




     (E) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




     (F) any Lender is at such time a Defaulting Lender or an Impacted Lender,
unless the L/C Issuer has entered into arrangements, satisfactory to the L/C Issuer,
with the Borrower or such Lender, including the provision of sufficient Cash
Collateral or other credit support acceptable to the L/C Issuer, to eliminate the
L/C Issuer’s actual Disproportionate Facility Risk with respect to such Lender as to
the Letter of Credit then proposed to be issued; provided that to the extent
the Borrower provides sufficient Cash Collateral to the L/C Issuer to eliminate the
L/C Issuer’s Disproportionate Facility Risk with respect to such Lender as to the
Letter of Credit then proposed to be issued, such provision of Cash Collateral shall
be deemed to be a satisfactory arrangement to the L/C Issuer.




     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit
in its amended form under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the



40









 







documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as the L/C Issuer may reasonably require. In the case of a request for
an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (w) the Letter of Credit to be
amended; (x) the proposed date of amendment thereof (which shall be a Business Day); (y) the
nature of the proposed amendment; and (z) such other matters as the L/C Issuer may
reasonably require. Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or
the Administrative Agent may reasonably require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in Article
IV shall not then be satisfied, then, subject to the terms and conditions hereof, the
L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the
Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case
may be, in each case in accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to the product of
such Lender’s Pro Rata Share times the amount of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a specific request to
the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer
to permit the extension of such Letter of Credit at any time to an expiry date not later
than the Letter of Credit Expiration Date; provided, however, that the L/C
Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it
would not be permitted, or would have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason of the provisions
of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is five



41









 







Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the Administrative
Agent, any Lender or any Loan Party that one or more of the applicable conditions specified
in Section 4.02 is not then satisfied, and in each such case directing the L/C
Issuer not to permit such extension.




     (iv) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
permits the automatic reinstatement of all or a portion of the stated amount thereof after
any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless
otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific
request to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter
of Credit has been issued, except as provided in the following sentence, the Lenders shall
be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a
portion of the stated amount thereof in accordance with the provisions of such Letter of
Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits
the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after
a drawing thereunder by giving notice of such non-reinstatement within a specified number of
days after such drawing (the “Non-Reinstatement Deadline”), the L/C Issuer shall not
permit such reinstatement if it has received a notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the Non-Reinstatement
Deadline (A) from the Administrative Agent that the Required Lenders have elected not to
permit such reinstatement or (B) from the Administrative Agent, any Lender or the Borrower
that one or more of the applicable conditions specified in Section 4.02 is not then
satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this
clause) and, in each case, directing the L/C Issuer not to permit such reinstatement.




     (v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time,
the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of
the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such
Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed to have
requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but



42









 







subject to the Borrowing Base and the amount of the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Loan Notice).
Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.




     (ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any notice
pursuant to Section 2.03(c)(i) make funds available (including for this purpose Cash
Collateral and other credit support available with respect to the applicable Letter of
Credit provided by any Defaulting Lender or Impacted Lender pursuant to Section
2.03(a)(iii)(F)) to the Administrative Agent for the account of the L/C Issuer at the
Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 12:00 noon on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to
the Borrower in such amount. The Administrative Agent shall remit the funds so received to
the L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot
be satisfied (and have not been waived) or for any other reason, the Borrower shall be
deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the Default Rate from the date
such amount is so demanded until the date on which such amount is paid in full. In such
event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from such
Lender in satisfaction of its participation obligation under this Section 2.03.




     (iv) Until each Lender funds its Revolving Credit Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely
for the account of the L/C Issuer.




     (v) Each Lender’s obligation to make Revolving Credit Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the L/C Issuer, the Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving Credit
Loans pursuant to this Section 2.03(c) is subject to the satisfaction or waiver of
the conditions set forth in Section 4.02 (other than delivery by the Borrower of a
Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the



43









 







obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by
the L/C Issuer under any Letter of Credit, together with interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest
error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s L/C Advance was
outstanding) in the same funds as those received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.06 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on demand
of the Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate
from time to time in effect.



     (e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;



44









 






     (ii) the existence of any claim, counterclaim, set-off, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or




     (v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.



     The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The
Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.



     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, any
Agent-Related Person nor any of the respective correspondents, participants or assignees of the L/C
Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at
the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or instrument related to any
Letter of Credit or Letter of Credit Application. The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not, preclude
the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, any Agent-Related Person,
nor any of the respective correspondents, participants or assignees of the



45









 







L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section
2.03(e); provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused
by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.



     (g) Cash Collateral and Other Credit Support.




     (i) Upon the written request of the Administrative Agent, (i) if the L/C Issuer has
honored any full or partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (ii) if, as of the date that is 10 Business Days prior to
the Letter of Credit Expiration Date, any Letter of Credit for any reason remains
outstanding and partially or wholly undrawn, the Borrower shall immediately Cash
Collateralize such amount as the Administrative Agent may request, up to a maximum amount
equal to the then Outstanding Amount of all L/C Obligations (in an amount equal to such
Outstanding Amount determined as of the date of such L/C Borrowing or the Letter of Credit
Expiration Date, as the case may be). Sections 2.06 and 8.02(c) set forth
certain additional requirements to deliver Cash Collateral hereunder, and Section
2.03(a)(iii)(F) provides for the delivery of Cash Collateral or other credit support in
certain circumstances. The Borrower, and to the extent provided by any Defaulting Lender or
Impacted Lender pursuant to this Section 2.03, such Lender hereby grants to the
Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and all
balances therein, and all other property provided as collateral under this Section
2.03, Section 2.06 and Section 8.02(c), and all proceeds of the
foregoing. Cash Collateral shall be maintained in blocked, interest bearing deposit
accounts at Bank of America. Upon the indefeasible payment in full in cash of the
Obligations, the Administrative Agent shall immediately release the security interest in the
cash, deposit accounts and balances therein and proceeds thereof maintained as Cash
Collateral pursuant to this Section 2.03(g).




     (ii) Notwithstanding anything to the contrary contained in this Agreement, (i) Cash
Collateral or other credit support (and proceeds thereof) provided by any Defaulting Lender
or Impacted Lender pursuant to Section 2.03(a)(iii) (F) to support the obligations
of such Lender in respect of Letters of Credit shall be held and applied, first, to
fund the L/C Advances of such Lender or such Lender’s Pro Rata Share of Base Rate Loans
arising from Letters of Credit with respect to which such collateral or other credit support
was provided, as contemplated by the foregoing provisions of this Section 2.03, and,



46









 







second, to fund (x) the L/C Advances of such Lender or such Lender’s Pro Rata Share
of Base Rate Loans arising from any other Letters of Credit, as contemplated by the
foregoing provisions of this Section 2.03, and (y) any interest accrued for the
benefit of the L/C Issuer pursuant to Section 2.03(c)(vi) allocable to such Lender,
and (ii) Cash Collateral and other credit support (and proceeds thereof) otherwise provided
by or on behalf of the Borrower under Section 2.03, 2.06 or 8.02(c)
to support L/C Obligations shall be held and applied, first, to the satisfaction of
the specific L/C Obligations so supported and, second, if remedies under Section
8.02 shall have been exercised, to the application of such collateral or other credit
support (or proceeds thereof) to any other Obligations in accordance with Section
8.03.




     (iii) Cash Collateral and other credit support provided under Section
2.03(a)(iii)(F) in connection with any Lender’s status as a Defaulting Lender or an
Impacted Lender shall be released (except as the L/C Issuer and the Person providing such
collateral or other credit support may agree otherwise) promptly following the earlier to
occur of (A) the termination of such Lender’s status as a Defaulting Lender or Impacted
Lender and (B) following the L/C Issuer’s good faith determination that there remain
outstanding no L/C Obligations as to which it has actual or potential Disproportionate
Facility Risk in relation to such Lender as to which it desires to maintain Cash Collateral
or other credit support; subject, however, to the additional condition that, as to any such
collateral or other credit support provided by or on behalf of the Borrower, no Default or
Event of Default shall then have occurred and be continuing.



     (h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable
to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of issuance shall apply to
each commercial Letter of Credit.



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the daily maximum amount available to be drawn under such Letter of Credit (whether
or not such maximum amount is then in effect under such Letter of Credit); provided,
however, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender
with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash
Collateral or other credit support arrangements satisfactory pursuant to this Section 2.03
shall be payable for the account of the L/C Issuer; provided, further, with respect
to any Letter of Credit, to the extent the Borrower provides Cash Collateral or other credit
support pursuant to Section 2.03(a)(iii)(F) in respect of a Defaulting Lender, the Borrower
shall not be required to pay any Letter of Credit Fees allocable to such portion of such Letter of
Credit for which the Borrower has provided such Cash Collateral or other credit support in respect
of a Defaulting Lender. Letter of Credit Fees shall be computed on a quarterly basis in arrears.
Such Letter of Credit Fees shall be due and payable (i) on the earlier of (A) 7 days after the end
of each March, June, September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, and (B)



47









 







upon receipt of an invoice by the Borrower with respect to such Letter of Credit Fees, (ii) on the Letter of Credit Expiration Date and (iii) thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the daily maximum amount
of each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything
to the contrary contained herein, while any Event of Default exists, all Letter of Credit Fees
shall accrue at the Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit in the amount specified in the Fee Letter, payable on the actual daily
maximum amount available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit). Such fronting fee shall be computed on a
quarterly basis in arrears. Such fronting fee shall be due and payable (i) on the earlier of (A) 7
days after the end of each March, June, September and December, commencing with the first such date
to occur after the issuance of such Letter of Credit, and (B) upon receipt of an invoice by the
Borrower with respect to such Letter of Credit Fees, (ii) on the Letter of Credit Expiration Date
and (iii) thereafter on demand. In addition, the Borrower shall pay directly to the L/C Issuer for
its own account the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to
time in effect. Such customary fees and standard costs and charges are due and payable on demand
and are nonrefundable.



     (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



     (l) Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer
hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges
that the issuance of Letters of Credit for the account of Restricted Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial
benefits from the businesses of such Restricted Subsidiaries.



     2.04. Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section
2.04, may in its sole and absolute discretion make loans (each such loan, a “Swing Line
Loan”) to the Borrower from time to time on any Business Day during the Availability Period in
an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the Outstanding Amount of
the Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may
exceed the amount of such Lender’s Commitment; provided, however, that after giving
effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the lesser of (x) the
Borrowing Base and (y) the Aggregate Commitments and (ii) the aggregate Outstanding Amount of the
Revolving Credit Loans of any Lender, plus such Lender’s Pro Rata Share of the



48









 







Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender’s Commitment, and provided
further that the Borrower shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.04, prepay under
Section 2.06, and reborrow under this Section 2.04. Each Swing Line Loan shall
bear interest only at a rate based on the Base Rate plus the Applicable Rate. Immediately
upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing
Line Loan in an amount equal to the product of such Lender’s Pro Rata Share times the
amount of such Swing Line Loan.



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 2:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has notified
the Borrower and the Administrative Agent prior to 2:30 p.m. on the date of the Swing Line Loan
Notice that it will not make a Swing Line Loan or has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Lender) prior to 3:00 p.m. on the
date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first
sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified
in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 4:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower at its office by
crediting the account of the Borrower on the books of the Swing Line Lender in immediately
available funds.



     (c) Refinancing of Swing Line Loans. (i) The Swing Line Lender at any time in its
sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate
Loan in an amount equal to such Lender’s Pro Rata Share of the amount of all Swing Line Loans then
outstanding. Such request shall be made in writing (which written request shall be deemed to be a
Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal amount of Base Rate
Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set
forth in Section 4.02. The Swing Line Lender shall furnish the Borrower with a copy of the
applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each
Lender shall make an amount equal to its Pro Rata Share of the amount of all



49









 







Swing Ling Loans as specified in such Loan Notice available (including for this purpose Cash Collateral and other
credit support available with respect to the applicable Swing Line Loan provided by any Defaulting
Lender or Impacted Lender pursuant to Section 2.04(c)(v)) to the Administrative Agent in
immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s
Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to
Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made
a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so
received to the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.




     (iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with
banking industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the Swing Line Lender in connection with the foregoing.
If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid
shall constitute such Lender’s Loan included in the relevant Borrowing or funded participation in the relevant Swing Line Loan, as the case
may be. A certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.




     (iv) Each Lender’s obligation to make Revolving Credit Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c)
is subject to the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower to repay
Swing Line Loans, together with interest as provided herein.



50









 






     (v) In the event that the Swing Line Lender, in the exercise of its discretion,
requires that, as a condition to the making of any Swing Line Loan, a Defaulting Lender or
Impacted Lender enter into arrangements satisfactory to the Swing Line Lender for the
provision of sufficient Cash Collateral or other credit support acceptable to the
Administrative Agent and the Swing Line Lender, to eliminate the Swing Line Lender’s actual
or potential Disproportionate Facility Risk with respect to any such Defaulting Lender or
Impacted Lender as to either the Swing Line Loan then proposed to be issued or such Swing
Line Loan and all other Swing Line Loans as to which the Swing Line Lender has actual or
potential Disproportionate Facility Risk, as the Swing Line Lender may elect in its
discretion, then:




     (A) To the extent provided by any Defaulting Lender or Impacted Lender pursuant
to this Section 2.04, such Defaulting Lender or Impacted Lender, hereby
grants to the Administrative Agent, for the benefit of the Administrative Agent, the
Swing Line Lender and the Lenders, a security interest in all Cash Collateral and
all other property provided as collateral under this Section 2.04, and all
proceeds of the foregoing. Cash Collateral shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America.




     (B) Notwithstanding anything to the contrary contained in this Agreement, Cash
Collateral or other credit support (and proceeds thereof) provided by any Defaulting
Lender or Impacted Lender pursuant to this Section 2.04 to support the
obligations of such Defaulting Lender or Impacted Lender in respect of Swing Line
Loans shall be held and applied, first, to fund, as applicable, the
participations of such Defaulting Lender or Impacted Lender arising from, or Base
Rate Loans issued to repay, Swing Line Loans with respect to which such collateral
or other credit support was provided, as contemplated in the foregoing provisions of
this Section 2.04(c), and, second, to fund (x) as applicable, the
participations of such Defaulting Lender or Impacted Lender arising from, or Base
Rate Loans issued to repay, Swing Line Loans arising from any other Swing Line Loans, as contemplated in the foregoing provisions of this
Section 2.04(c), and (y) any interest accrued for the benefit of the Swing
Line Lender pursuant to Section 2.04(c)(iii) allocable to such Defaulting
Lender or Impacted Lender.




     (C) Cash Collateral and other credit support provided under this Section
2.04 in connection with any Lender’s status as a Defaulting Lender or an
Impacted Lender shall be released (except as the Swing Line Lender and the Person
providing such collateral or other credit support may agree otherwise) promptly
following the earlier to occur of (i) the termination of such Lender’s status as a
Defaulting Lender or Impacted Lender or (ii) following the Swing Line Lender’s good
faith determination that there remain outstanding no Swing Line Loans as to which it
has actual or potential Disproportionate Facility Risk in relation to such
Defaulting Lender or Impacted Lender as to which it desires to maintain Cash
Collateral or other credit support.




51











 





     (d) Repayment of Participations. (i) At any time after any Lender has purchased and
funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on
account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata
Share thereof in the same funds as those received by the Swing Line Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance
such Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share
shall be solely for the account of the Swing Line Lender.



     (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



     2.05. Repayment of Loans as of the Second Restatement Effective Date.



Notwithstanding the foregoing provisions of this Article II upon its receipt of the
proceeds of the Loans, the Borrower shall apply a portion of such proceeds sufficient to (i) prepay
in full the First Restatement Loans which are not being converted by First Restatement Lenders into
Loans hereunder, (ii) pay all accrued and unpaid interest and fees, if any, on all such First
Restatement Loans held by First Restatement Lenders that are being prepaid and (iii) pay to all
First Restatement Lenders all other amounts then due and owing as a result of the prepayment of
such First Restatement Loans.



     2.06. Prepayments.



     (a) (i) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Revolving Credit Loans in whole or in part without premium or penalty;
provided that (A) such notice must be received by the Administrative Agent not later than
11:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2)
on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be
in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and (C) any
prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent
will promptly notify each Lender of its receipt of each such notice, and of the amount of such



52









 







Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall be due and payable
on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by
all accrued interest thereon, together with any additional amounts required pursuant to Section
3.05. Each such prepayment shall be applied to the Loans of the Lenders in accordance with
their respective Pro Rata Shares.




     (ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in whole or in part without premium or penalty; provided that (A) such notice must
be received by the Swing Line Lender and the Administrative Agent not later than 2:00 p.m.
on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified
therein.



     (b) If for any reason the Total Outstandings at any time exceed the lesser of (x) the
Borrowing Base and (y) the Aggregate Commitments then in effect, the Borrower shall immediately
prepay Revolving Credit Loans, Swing Line Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess; provided, however, that the Borrower shall
not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(b)
unless after the prepayment in full of the Loans, the Total Outstandings exceed the lesser of (x)
the Borrowing Base and (y) the Aggregate Commitments then in effect.



     (c) If the Borrower or any Guarantor sells any assets permitted under Section 7.05
and, after giving effect to such sale, the Total Outstandings exceed the Borrowing Base then in
effect, the Net Cash Proceeds of such sale shall be applied to the prepayment of the Loans in an
amount necessary to eliminate any such excess.



     2.07. Termination or Reduction of Commitments.



     The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments or the Swing Line Sublimit or from time to time permanently reduce the Aggregate
Commitments or the Swing Line Sublimit; provided that (i) any such notice shall be received
by the Administrative Agent not later than 11:00 a.m. three Business Days prior to the date of
termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of
$1,000,000 or any whole multiple of $500,000 in excess thereof and (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Outstandings would exceed the lesser of (x) the Borrowing Base and
(y) the Aggregate Commitments. The Administrative Agent will promptly notify the Lenders of any
such notice of termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender according to its Pro Rata
Share. All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of
such termination.



     2.08. Repayment of Loans.



53









 





     (a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal
amount of the Revolving Credit Loans outstanding on such date.



     (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the Maturity Date.



     (c) In the event that any payment shall be made in respect of the principal amount of any
Loan, whether by voluntary or mandatory prepayment, at maturity or pursuant to Article VIII, or any
Defaulting Lender shall obtain by set off or otherwise any payment of principal on any Loan or in
respect of certain fees it is required to deliver to the Administrative Agent pursuant to
Section 10.08, all such payments otherwise payable to or for the account of (or obtained
by) such Defaulting Lender shall be applied promptly following receipt by the Administrative Agent,
first, to the payment of any obligations or liabilities owed by such Defaulting Lender to
the Administrative Agent, second, if at such time there exist any Disproportionate Facility
Risk allocable to such Defaulting Lender in respect of (x) the Outstanding Amount of Revolving
Credit Loans, (y) the Outstanding Amount of Swing Line Loans or (z) Unreimbursed Amounts in respect
of Letters of Credit, to reduce such Disproportionate Facility Risk (such payments of Loans, Swing
Line Loans and Unreimbursed Amounts to be made ratably among all Lenders, the Swing Line Lender and
the L/C Issuer who have incurred the same in accordance with the respective amounts of such
Disproportionate Facility Risk allocable to each of them), third, to Cash Collateralize
pursuant to Section 2.03 the remaining Disproportionate Facility Risk allocable to such
Defaulting Lender then incurred by the L/C Issuer, and, fourth, to Cash Collateralize
pursuant to Section 2.04 the remaining Disproportionate Facility Risk allocable to such
Defaulting Lender then incurred by the Swing Line Lender, prior to any payment to such Defaulting
Lender.



     2.09. Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate and
(ii) each Base Rate Loan and each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate.



     (b) (i) If any amount of principal of any Loan is not paid when due (after giving effect to
any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter, and until paid, bear interest at a fluctuating interest rate per annum
equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower under any
Loan Document is not paid when due (after giving effect to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the written request of
the Required Lenders, such amount shall thereafter, and until paid, bear interest at a
fluctuating interest rate per annum equal to the Default Rate to the fullest extent
permitted by applicable Laws.



54









 






     (iii) Upon the written request of the Administrative Agent on behalf of the Required
Lenders, while any Event of Default exists (other than as provided in Section 2.09(b)(i)
and (ii)), the Borrower shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon written demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     2.10. Fees. In addition to certain fees described in subsections (i) and (j) of Section 2.03:



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share, a commitment fee equal to the
Applicable Rate times the actual daily amount by which the Aggregate Commitments exceed the
Total Outstandings; provided, however, that no such fee shall be payable for the
account of any Defaulting Lender and, in making the foregoing calculation, the Commitment of
Defaulting Lenders shall be deducted from the Aggregate Commitments. The commitment fee shall
accrue at all times during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met or otherwise waived, and shall be due and
payable quarterly in arrears on (i) the earlier of (x) 7 days after the end of each March, June,
September and December, commencing with the first such date to occur after the Second Restatement
Effective Date and (y) upon the receipt of an invoice by the Borrower with respect to such
commitment fee, and (ii) on the Maturity Date. The commitment fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. Swing Line Loans will not be considered
utilization of the Aggregate Commitment for purposes of this calculation, except to the extent that
a Lender has purchased a participation in a Swing Line Loan under Section 2.04(c).



     (b) Other Fees. (i) The Borrower shall pay to the Arranger and the Administrative
Agent for their own respective accounts fees in the amounts and at the times specified in the Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.




     (ii) The Borrower shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.



     2.11. Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by Bank
of America’s “prime rate” shall be made on



55









 







the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided that any Loan that
is repaid on the same day on which it is made shall, subject to Section 2.13(a), bear
interest for one day.



     2.12. Evidence of Debt.



     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note,
which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may
attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto. Each First Restatement Lender that has a
note evidencing its First Restatement Loan which is being converted into a Loan hereunder shall
promptly deliver to the Borrower such note in exchange for a Note evidencing its Loan.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error.



     2.13. Payments Generally.



     (a) All payments to be made by the Borrower shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 12:00 noon on the date specified herein.
The Administrative Agent will promptly distribute to each Lender, except any Defaulting Lender
(other than Defaulting Lenders who have fully funded their respective portions of all outstanding
Loans and provided Cash Collateral or other credit support under Sections 2.03 and
2.04, as applicable, to eliminate Disproportionate Facility Risk



56









 







attributable to them with
respect to Letters of Credit and Swing Line Loans) its Pro Rata Share (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to such Lender’s
Lending Office. All payments received by the Administrative Agent after 12:00 noon shall be deemed
received on the next succeeding Business Day and any applicable interest or fee shall continue to
accrue.



     (b) If any payment to be made by the Borrower shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.



     (c) Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date
any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower
or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, has timely made such payment and may (but
shall not be so required to), in reliance thereon, make available a corresponding amount to the
Person entitled thereto. If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:




     (i) if the Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the Administrative
Agent in immediately available funds at the Federal Funds Rate from time to time in effect;
and




     (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available funds, together
with interest thereon for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is recovered by the
Administrative Agent (the “Compensation Period”) at a rate per annum
equal to the Federal Funds Rate from time to time in effect. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan
included in the applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand
therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative
Agent, together with interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice
any rights which the Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (c) shall be conclusive, absent manifest error.



57









 





     (d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by
such Lender as provided in the foregoing provisions of this Article II, and such funds are
not made available to the Borrower by the Administrative Agent because the conditions to the
applicable Credit Extension set forth in Article IV are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds
as received from such Lender) to such Lender, without interest.



     (e) The obligations of the Lenders hereunder to make Revolving Credit Loans and to fund
participations in Letters of Credit and Swing Line Loans and to make payments pursuant to
Section 10.04(c) are several and not joint. The failure of any Lender to make any
Revolving Credit Loan or to fund any such participation or to make any payment under Section
10.4(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Revolving Credit Loan, or to purchase its participation or to make its
payments under Section 10.04(c).



     (f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in
any particular place or manner or to constitute a representation by any Lender that it has obtained
or will obtain the funds for any Loan in any particular place or manner.



     (g) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder,
such funds shall be applied (i) first, toward payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, toward payment of principal and L/C
Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and L/C Borrowings then due to such parties.



     2.14. Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender shall obtain on account
of the Loans made by it, or the participations in L/C Obligations held by it, any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise)
in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall
immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other
Lenders such participations in the Revolving Credit Loans made by them and/or such
subparticipations in the participations in L/C Obligations and Swing Line Loans held by them, as
the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment
in respect of such Loans or such participations, as the case may be, pro rata with each of them;
provided, however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender under any of the circumstances described in Section
10.06 (including pursuant to any settlement entered into by the purchasing Lender in its
discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount equal to such
paying Lender’s ratable share (according to the proportion of (i) the amount of such paying
Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered, without further interest thereon. The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent permitted by law,



58









 







exercise all its rights of payment (including the right of set-off, but subject to Section
10.08) with respect to such participation as fully as if such Lender were the direct creditor
of the Borrower in the amount of such participation. The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following any such purchases
or repayments. Each Lender that purchases a participation pursuant to this Section shall from and
after such purchase have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the Obligations purchased.



     2.15. Increase in Commitments.



     (a) Provided there exists no Default, upon notice to the Administrative Agent (which shall
promptly notify the Lenders), the Borrower may request an increase in the Aggregate Commitments by
an amount (for all such requests) not exceeding $150,000,000; provided that (i) each
request for an increase shall be in a minimum amount of $25,000,000 (or such other amount as agreed
to by the Administrative Agent) and (ii) the Aggregate Commitments as so increased shall not exceed
$450,000,000. At the time of sending any such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of delivery of such
notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period
whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to,
greater than, or less than its Pro Rata Share of such requested increase. Any Lender not
responding within such time period shall be deemed to have declined to increase its Commitment.
The Administrative Agent shall promptly thereafter notify the Borrower and each Lender of the
Lenders’ responses (or non-responses) to each request made hereunder. To achieve the full amount
of a requested increase, the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.



     (b) If the Aggregate Commitments are increased in accordance with this Section, the
Administrative Agent and the Borrower shall determine the effective date (the “Increase
Effective Date”) and the final allocation of such increase. The Administrative Agent shall
promptly notify the Borrower and the Lenders of the final allocation of such increase and the
Increase Effective Date and provide to each Lender and the Borrower a revised Schedule 2.01
reflecting such increase. As a condition precedent to such increase, the Borrower shall deliver to
the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of the Borrower (i) certifying
and attaching the resolutions adopted by the Borrower approving or consenting to such increase, and
(ii) certifying that, before and after giving effect to such increase, (A) the representations and
warranties contained in Article V and the other Loan Documents are true and correct in all
material respects on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true
and correct in all material respects as of such earlier date, and except that for purposes of this
Section 2.15, the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to
subsections (a) and (b),



59









 







respectively, of Section 6.01, and (B) no Default exists. In the
event that there are any Loans outstanding on the Increase Effective Date, upon notice from the
Administrative Agent to each Lender, the amount of Loans owing to each Lender shall be
appropriately adjusted to the extent necessary to keep the outstanding Loans ratable with any
revised Pro Rata Shares arising from any nonratable increase in the Commitments under this Section
and the Borrower shall pay any amounts required pursuant to Section 3.05.



     (c) This Section shall supersede any provisions in Sections 2.14 or 10.01 to
the contrary.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01. Taxes.



     (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.




     (i) Any and all payments by or on account of any obligation of the Borrower hereunder
or under any other Loan Document shall to the extent permitted by applicable Laws be made
free and clear of and without reduction or withholding for any Taxes. If, however,
applicable Laws require the Borrower, any Guarantor or the Administrative Agent to withhold
or deduct any Tax, such Tax shall be withheld or deducted in accordance with such Laws upon
the basis of the information and documentation to be delivered pursuant to subsection (e)
below.




     (ii) If the Borrower, any Guarantor or the Administrative Agent shall be required by
applicable Laws to withhold or deduct any Taxes, including both United
States Federal backup withholding and withholding taxes, from any payment, then (A) the
Borrower, such Guarantor or the Administrative Agent, as the case may be, shall withhold or
make such deductions as it determines to be required based upon the information and
documentation it has received pursuant to subsection (e) below, (B) the Borrower, such
Guarantor or the Administrative Agent, as the case may be, shall timely pay the full amount
withheld or deducted to the relevant Governmental Authority in accordance with applicable
Laws, and (C) to the extent that the withholding or deduction is made on account of
Indemnified Taxes or Other Taxes, the sum payable by the Borrower or such Guarantor shall be
increased as necessary so that after any required withholding or the making of all required
deductions (including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal
to the sum it would have received had no such withholding or deduction been made.



     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Laws.



     (c) Tax Indemnifications. Without limiting the provisions of subsection (a) or (b)
above, the Borrower shall, and does hereby agree to, indemnify the Administrative Agent, each
Lender and the L/C Issuer, and shall make payment in respect thereof within 10 days after



60









 







written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent, such Lender, the L/C Issuer or any of their respective
Affiliates, as the case may be, 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 any such payment or liability delivered to the Borrower by a Lender or the L/C
Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.



     (d) Evidence of Payments. Upon reasonable request by the Borrower or the
Administrative Agent, as the case may be, after any payment of Taxes by the Borrower or the
Administrative Agent to a Governmental Authority as provided in this Section 3.01, the
Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the
Borrower, as the case may be, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of any return required by Laws to report
such payment or other evidence of such payment reasonably satisfactory to the Borrower or the
Administrative Agent, as the case may be.



     (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws, on or
before it becomes a party to this Agreement and when reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation prescribed by applicable
Laws or by the taxing authorities of any jurisdiction and such other reasonably requested
information as will permit the Borrower or the Administrative Agent, as the
case may be, to determine (A) whether or not payments made hereunder or under any other Loan
Document are subject to withholding or deduction of Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower
pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in the applicable jurisdiction.




     (ii) Without limiting the generality of the foregoing,




     (A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent
executed originals of Internal Revenue Service Form W-9 or such other documentation
or information prescribed by applicable Laws or reasonably requested by the Borrower
or the Administrative Agent as will enable the Borrower or the Administrative Agent,
as the case may be, to determine whether or not such Lender is subject to backup
withholding or information reporting requirements; and




     (B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document shall deliver to



61









 







the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:




     (I) executed originals of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States
is a party,




     (II) executed originals of Internal Revenue Service Form W-8ECI,




     (III) executed originals of Internal Revenue Service Form W-8IMY and
all required supporting documentation,




     (IV) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue
Service Form W-8BEN, or




     (V) executed originals of any other form prescribed by applicable Laws
as a basis for claiming exemption from or a reduction in
United States Federal withholding tax together with such supplementary
documentation as may be prescribed by applicable Laws to permit the Borrower
or the Administrative Agent to determine the withholding or deduction
required to be made.




     In addition, in the case of the forgoing clauses (A) and (B), each Lender shall
deliver new such forms and documentation on or before the obsolescence, expiration
or invalidity of any such form or documentation previously delivered by such Lender.




     (iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent
of any change in circumstances which would modify or render invalid any claimed exemption or
reduction, and (B) take such steps as shall not be disadvantageous to it, in the sole
judgment of such Lender, and as may be reasonably necessary (including the re-designation of
its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that the
Borrower or the Administrative Agent make any withholding or deduction for Taxes from
amounts payable to such Lender.




     (iv) Notwithstanding anything herein to the contrary, a Lender shall not be required to
deliver any form, document or other information pursuant to this Section 3.01(e) if
such Lender is not legally able to deliver such form.



62









 





     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or the L/C Issuer 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 to the Borrower an amount equal to such refund (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 incurred by the Administrative Agent, such Lender or the L/C Issuer,
as the case may be, (including any Taxes imposed with respect to such refund) as is determined by
the Administrative Agent, such Lender or the L/C Issuer, as the case may be, in good faith and in
its sole discretion, and as will leave the Administrative Agent, such Lender or the L/C Issuer in
no worse position than it would be in if no such Indemnified Taxes or Other Taxes had been imposed
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 the Administrative
Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to the Borrower (plus
any penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such
Lender or the L/C Issuer is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer
to make available its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.



     3.02. Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to
make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or
to determine or charge interest rates based upon the Eurodollar Rate, then, on written notice
thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such
Lender (i) to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar
Rate Loans and (ii) if such notice asserts the illegality of such Lender determining or charging
interest rates based upon the Eurodollar Rate, to make or maintain Base Rate Loans the interest
rate on which is determined by reference to the Eurodollar component of the Base Rate, shall be
suspended until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x)
the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the
interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality,
be determined by the Administrative Agent without reference to the Eurodollar Rate component of the
Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the
illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate,
the Administrative Agent, upon receipt of the copy of the demand made by the Borrower to such
Lender, shall during the period of such suspension



63









 







compute the Base Rate applicable to such Lender
without reference to the Eurodollar Rate component thereof. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
Each Lender agrees to designate a different Lending Office if such designation will avoid the need
for such notice and will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.



     3.03. Inability to Determine Rates. If the Required Lenders determine in connection with any request for a Eurodollar Rate Loan
or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks
in the London interbank eurodollar market for the applicable amount and Interest Period of such
Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar
Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in
connection with an existing or proposed Base Rate Loan or (c) that the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to
make or maintain Eurodollar Rate Loans shall be suspended and (y) in the event of a determination
described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate,
the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended,
in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.



     3.04. Increased Costs; Reserves on Eurodollar Rate Loans.



     (a) Increased Costs Generally. If any Change in Law shall:




     (i) 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 or participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e)) or the L/C Issuer; or




     (ii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case


64









 






may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with
respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the
L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or
the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction
suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than six months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long
as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the Borrower shall have
received at least 15 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be due and payable 15 days from
receipt of such notice.



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     3.05. Compensation for Losses. Upon written demand of any Lender (with a copy to the Administrative Agent), accompanied by
a certificate to the Borrower pursuant to Section 3.06(a), from time to time, the Borrower
shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or
expense reasonably incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower; or



     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.16;



including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.


For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.




     3.06. Matters Applicable to all Requests for Compensation.



     (a) A certificate of the Administrative Agent or any Lender claiming compensation or other
amounts under this Article III and setting forth (i) in reasonable detail the basis for
such compensation, (ii) the additional amount or amounts to be paid to such Person hereunder, (iii)
the computations made by such Person to determine such amount and (iv) a statement that the
Administrative Agent or such Lender is seeking comparable payments from similarly situated
borrowers. Such certificate as set forth in the preceding sentence shall be conclusive in the
absence of manifest error. In determining such amount, the Administrative Agent or such Lender may
use any reasonable averaging and attribution methods.



     (b) Upon any Lender’s making a claim for compensation under Section 3.01 or
3.04, or any Lender exercising its rights under Section 3.02, the Borrower may
replace such Lender in accordance with Section 10.14.



     3.07. Survival. All of the Borrower’s obligations under this Article III shall survive termination
of the Aggregate Commitments and repayment of all other Obligations hereunder.



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ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01. Second Restatement Effective Date. The effectiveness of this Second Amended and Restated Credit Agreement and the obligation
of the Lenders to make or continue their Credit Extension on the Second Restatement Effective Date
is subject to satisfaction (or waiver) of the following conditions precedent on or before the
Second Restatement Effective Date:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Second Restatement Effective Date
(or, in the case of certificates of governmental officials, a recent date before the Second
Restatement Effective Date) and each in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders signatory hereto:




     (i) executed counterparts of this Agreement and the Reaffirmation And Assumption
Agreement, sufficient in number for distribution to the Administrative Agent, each Lender
and the Borrower;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note,
provided that each such Lender has returned its Note received pursuant to the
Restated Credit Agreement, if any, as required by Section 2.12;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may require evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;




     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each Loan
Party is validly existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the conduct of its
business requires such qualification, except to the extent that failure to do so would not
reasonably be expected to have a Material Adverse Effect;




     (v) favorable opinions of (A) Vinson & Elkins L.L.P., outside counsel to the Borrower,
and (B) Denise McWatters, General Counsel of the Borrower, in each case addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit F and
such other matters concerning the Loan Parties and the Loan Documents as the Administrative
Agent or the Required Lenders may reasonably request;




     (vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses and approvals shall be in
full force and effect, or (B) stating that no such consents, licenses or approvals are so
required;



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     (vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied and
(B) that there has been no event or circumstance since December 31, 2008 that has had or
could be reasonably expected to have, either individually or in the aggregate, a Material
Adverse Effect;




     (viii) a duly completed Borrowing Base Certificate as of February 28, 2009;




     (ix) a duly completed Compliance Certificate as of December 31, 2008, signed by a
Responsible Officer of the Borrower;




     (x) evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect;




     (xi) evidence that, subject to the initial Borrowing hereunder, the excess (if any) of
the First Restatement Lenders’ First Restatement Loans made under the Restated Credit
Agreement which shall not remain outstanding on and after the Second Restatement Effective
Date as Loans under this Agreement shall have been repaid in full;




     (xii) evidence that all of the Aggregate Commitments shall have been obtained and are
in effect; and




     (xiii) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders
reasonably may require.



     (b) Any fees required to be paid on or before the Second Restatement Effective Date shall have
been paid.



     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable
fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if
requested by the Administrative Agent) to the extent invoiced prior to or on the Second Restatement
Effective Date.



     (d) All governmental and third party approvals (including landlords’ and other consents)
necessary in connection with the continuing operations of the Loan Parties and the transactions
contemplated hereby shall have been obtained and be in full force and effect, and all applicable
waiting periods shall have expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose adverse conditions on the financing
contemplated hereby.



     (e) The Administrative Agent shall have received the results of a recent lien, tax lien,
judgment and litigation search in each of the jurisdictions or offices in which UCC financing
statements or other filings or recordations should be made to evidence or perfect (with the
priority required under the Loan Documents) security interests in the Collateral, and such search
shall be reasonably satisfactory to the Lenders signatory hereto.



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     (f) Each document (including, without limitation, any UCC financing statement) required by the
Guarantee and Collateral Agreement or under law or reasonably requested by the Administrative Agent
to be filed, registered or recorded in order to create in favor of the Administrative Agent, for
the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and
superior in right to any other Person (other than with respect to Permitted Liens), shall have been
filed, registered or recorded or shall have been delivered to the Administrative Agent in proper
form for filing, registration or recordation.



     (g) There shall be no litigation, public or private, or administrative proceedings,
governmental investigation or other legal or regulatory developments, actual or threatened, that,
singly or in the aggregate, would reasonably be expected to result in a Material Adverse Effect on
the Borrower and its Subsidiaries, taken as a whole, or would materially and adversely affect the
ability of the Borrower and its Subsidiaries to fully and timely perform their respective
obligations under the Loan Documents, or the rights and remedies of the Administrative Agent or the
Lenders under the Loan Documents.



     (h) The Administrative Agent and the Lenders signatory hereto shall have received, in form and
substance reasonably satisfactory to them (i) all financial information required to be delivered
pursuant to Section 6.01 of the Restated Credit Agreement, (ii) annual projections of the
Borrower and its Subsidiaries for the fiscal years ending December 31, 2009 and December 31, 2010, (iii) quarterly projections of the Borrower and its Subsidiaries for eight
consecutive quarters commencing with the fiscal quarter ending March 31, 2009 and (iv) the Audited
Financial Statements.



     Without limiting the generality of the provisions of the last paragraph of Section
9.03, for purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received written notice from such Lender prior to the proposed Second Restatement
Effective Date specifying its objection thereto.



     4.02. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Loan
Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar
Rate Loans) is subject to the following conditions precedent:



     (a) The representations and warranties of the Borrower and each other Loan Party, contained in
Article V or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct in all material
respects on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date, and except that for purposes of
this Section 4.02, the representations and warranties contained in subsections (a) and (b)
of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant
to clauses (a) and (b), respectively, of Section 6.01.



69









 





     (b) No Default shall exist, or would result from such proposed Credit Extension.



     (c) The Administrative Agent and, if applicable, the L/C Issuer or Swing Line Lender shall
have received a Request for Credit Extension in accordance with the requirements hereof.



     (d) the Total Outstandings, after giving effect to such Credit Extension, shall not exceed the
lesser of (x) the Borrowing Base and (y) the Aggregate Commitments then in effect.



     Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of
Revolving Credit Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by
the Borrower shall be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied (or waived) on and as of the date of
the applicable Credit Extension.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01. Existence, Qualification and Power; Compliance with Laws. Each Loan Party (a) is duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite
power and authority and all requisite governmental licenses, authorizations, consents and approvals
to (i) own its assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party, (c) is duly qualified and is licensed
and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c) or (d), to the
extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.



     5.02. Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which
such Person is party, have been duly authorized by all necessary corporate or other organizational
action, and do not and will not (a) contravene the terms of any of such Person’s Organization
Documents; (b) conflict with or result in any breach or contravention of, or the creation of any
Lien under, (i) any Contractual Obligation to which such Person is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person
or its property is subject; or (c) violate any Law.



     5.03. Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document, except for those that have previously been obtained and are currently
in full force and effect.



     5.04. Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have
been, duly executed and delivered by each Loan Party that is



70









 







party thereto. This Agreement
constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in
accordance with its terms, except as may be limited by applicable Debtor Relief Laws.



     5.05. Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(ii) fairly present the financial condition of the Borrower and its Consolidated Subsidiaries as of
the date thereof and their results of operations for the period covered thereby in accordance with
GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein. The Borrower has previously disclosed to the Administrative Agent and the Lenders
all material Indebtedness and other material liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the Second Restatement Effective Date,
including liabilities for taxes, material commitments and Indebtedness.



     (b) Since December 31, 2008, there has been no event or circumstance, either individually or
in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.



     5.06. Litigation. Except as specifically disclosed in Schedule 5.06, there, are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Borrower after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby, or (b) either individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.



     5.07. No Default. Neither the Borrower nor any Restricted Subsidiary is in default under or with respect to
any Contractual Obligation that would, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. No Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Agreement or any other Loan
Document.



     5.08. Ownership of Property; Liens. Each of the Borrower and each Restricted Subsidiary has good record and marketable title in
fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The property of the Borrower
and its Restricted Subsidiaries is subject to no Liens, other than Liens permitted by Section
7.01.



     5.09. Environmental Matters. The Borrower and its Subsidiaries conduct in the ordinary course of business a review of
the effect of existing Environmental Laws and pending or threatened claims alleging potential
Environmental Liability on their respective businesses, operations and properties, and as a result
thereof the Borrower has reasonably concluded that,



71









 







except as specifically disclosed in
Schedule 5.09, and after taking into account the availability of any insurance proceeds or
other amounts recovered from third parties, such Environmental Laws and claims could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10. Insurance. The properties of the Borrower and its Restricted Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where the Borrower or the
applicable Subsidiary operates.



     5.11. Taxes. The Borrower and its Subsidiaries have filed all Federal and state income tax returns and
other material tax returns and reports required to be filed, and have paid all Federal and state
income taxes and other material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and payable, except (a) those
which are being contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP or (b) to the extent that a
failure to do so would not reasonably be expected to result in a Material Adverse Effect. There is
no proposed tax assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect.



     5.12. ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code (i) has received a favorable determination letter from the IRS, (ii) has
outstanding an application for such a letter that is currently being processed by the IRS with
respect thereto, or (iii) has a remedial amendment period for submitting such an application that
has not closed. To the best knowledge of the Borrower, nothing has occurred which would prevent,
or cause the loss of, Plan qualification. The Borrower and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Code, and no application for a
funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.



     (b) There are no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan that would
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or
would reasonably be expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA and normal funding obligations); (iii) neither the Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would



72









 







result in such
liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iv)
neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.



     5.13. Subsidiaries. The Borrower has no Subsidiaries other than those specifically disclosed in Part (a) of
Schedule 5.13 and has no equity investments in any other corporation or entity other than
those specifically disclosed in Part(b) of Schedule 5.13, in each case, other than as
otherwise subsequently disclosed to the Administrative Agent in accordance with the terms of Loan
Documents.



     5.14. Margin Regulations; Investment Company Act; Public Utility Holding Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its primary
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.



     (b) None of the Borrower, any Person Controlling the Borrower, or any Restricted Subsidiary
(i) is a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of
a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the
Public Utilities Holding Company Act of 2005, as amended, or (ii) is or is required to be
registered as an “investment company” under the Investment Company Act of 1940.



     5.15. Disclosure. All information, other than projections, which has been or is hereafter made available to
the Administrative Agent or the Lenders by the Borrower or any Restricted Subsidiary in accordance
with the terms of this Agreement or any other Loan Document is and will be complete and correct in
all material respects. No report, financial statement, certificate or other information furnished
(in writing) by or on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time.



     5.16. Compliance with Laws. Each of the Borrower and each Restricted Subsidiary is in compliance in all material
respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually or in
the aggregate, would not reasonably be expected to have a Material Adverse Effect.



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     5.17. Guarantee and Collateral Agreement. The Guarantee and Collateral Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid, binding and
enforceable security interest in the Collateral described therein, prior to all other Liens except
Permitted Liens.



     5.18. Solvency. Each Loan Party is, and after giving effect to all Indebtedness and obligations being
incurred in connection herewith will be and will continue to be, Solvent.



     5.19. Use of Proceeds. The Borrower intends to use the proceeds of the Credit Extensions for working capital,
capital expenditures and general corporate purposes (including Permitted Acquisitions) not in
contravention of any Law or of any Loan Document and to refinance all amounts owing under the
Restated Credit Agreement.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01,
6.02, 6.03, 6.09, 6.11, 6.13, 6.14, 6.16
and 6.17) cause each Subsidiary, or, where specifically limited in a covenant, each
Restricted Subsidiary to:



     6.01. Financial Statements. Deliver to the Administrative Agent and each Lender, in form and detail reasonably
satisfactory to the Administrative Agent:



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower (commencing with the fiscal year ended December 31, 2008), a consolidated balance
sheet of the Borrower, its Consolidated Subsidiaries, and at any time that the MLP Parties (x) are
not then consolidated or (y) are required to file periodic reports with the SEC, the MLP Parties as
at the end of such fiscal year, and the related consolidated statements of income or operations,
Shareholders’ Equity and cash flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance
with GAAP, audited and accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to the Required Lenders, which
report and opinion shall be prepared in accordance with generally accepted auditing standards and
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; and



     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended
March 31, 2009), a consolidated balance sheet of the Borrower, its Subsidiaries, and at any time
that the MLP Parties (x) are not then consolidated or (y) are required to file periodic reports with the SEC, the MLP Parties as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, Shareholders’ Equity and cash flows for such
fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each
case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal
year and the corresponding portion of the previous fiscal year, all in reasonable detail and



74









 







certified by a Responsible Officer of the Borrower as fairly presenting the financial condition,
results of operations, Shareholders’ Equity and cash flows of the Borrower, its Subsidiaries, and
at any time that the MLP Parties (x) are not then consolidated or (y) are required to file periodic
reports with the SEC, the MLP Parties in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes.


As to any information contained in materials furnished pursuant to Section 6.02(c), the
Borrower shall not be separately required to furnish such information under clause (a) or (b)
above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish
the information and materials described in subsections (a) and (b) above at the times specified
therein. As to the information and materials described in subsections (a) and (b) above, the
Borrower shall provide, on an unaudited basis, corresponding consolidating financial statements.
As to the information and materials described in subsections (a) and (b) above, the Borrower shall
provide, on an unaudited basis, corresponding information and materials representative of the
Borrower and the Loan Parties (excluding therefrom any amounts attributable to the Unrestricted
Subsidiaries).




     6.02. Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in form and detail reasonably
satisfactory to the Administrative Agent:



     (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible
Officer of the Borrower;



     (b) promptly after any reasonable request by the Administrative Agent or any Lender, copies of
any detailed audit reports or management letters submitted to the board of directors (or the audit
committee of the board of directors) of the Borrower by independent accountants in connection with
the accounts or books of the Borrower or any Restricted Subsidiary, or any audit of any of them;



     (c) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration statements which the Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange
Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant
hereto;



     (d) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of any Loan Party or any Restricted Subsidiary thereof pursuant to the
terms of any indenture, loan or credit or similar agreement and not otherwise required to be
furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section
6.02;



     (e) promptly, and in any event within five Business Days after receipt thereof by any Loan
Party or any Restricted Subsidiary thereof, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other material inquiry by such agency regarding
financial or other operational results of any Loan Party or any Restricted Subsidiary thereof; and



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     (f) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Restricted Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or
any Lender that requests the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each
Lender of the posting of any such documents and provide to the Administrative Agent by electronic
mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything
contained herein, in every instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except
for such Compliance Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. The Borrower hereby agrees
that it will use commercially reasonable efforts to identify that portion of the Borrower Materials
that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not
containing any material non-public information (although it may be sensitive and proprietary) with
respect to the Borrower or its securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 10.08); (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor;” and (z) the Administrative Agent and the Arranger shall
treat any



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Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Investor.”



     6.03. Notices. Promptly, but in any event within five Business Days of the date on which any Responsible
Officer of the Borrower or any Restricted Subsidiary obtains knowledge thereof, notify the
Administrative Agent and each Lender:



     (a) of the occurrence of any Default;



     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Borrower or any Restricted Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any litigation or
proceeding affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws (in the case of clauses (i) through (iii) above to the extent it has resulted or
could reasonably be expected to result in a Material Adverse Effect);



     (c) of the occurrence of any ERISA Event; and



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Restricted Subsidiary.



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to therein and stating
what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant
to Section 6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.



     6.04. Payment of Obligations. Pay and discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all Tax liabilities, assessments and governmental charges or levies upon
it or its properties or assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by the Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a
Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing such Indebtedness.



     6.05. Preservation of Existence, Etc.



     (a) Preserve, renew and maintain in full force and effect the legal existence and good
standing of the Borrower and each Restricted Subsidiary under the Laws of the applicable
jurisdiction of organization except in a transaction permitted by Section 7.04 or
7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of the business of the Borrower and
each Restricted Subsidiary, except to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all of the registered
patents, trademarks, trade names



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and service marks of the Borrower and each Restricted Subsidiary,
the non-preservation of which would reasonably be expected to have a Material Adverse Effect.



     6.06. Maintenance of Properties.



     Except with respect to transactions permitted by Section 7.04 or 7.05, (a)
maintain, preserve and protect all material properties and equipment necessary in the operation of
the Borrower’s or any Restricted Subsidiary’s business in good working order and condition,
ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation
and maintenance of all facilities of the Borrower and the Restricted Subsidiaries.



     6.07. Maintenance of Insurance. Maintain with financially sound and reputable insurance companies not Affiliates of the
Borrower, insurance with respect to properties and business of the Borrower and each Restricted
Subsidiary against loss or damage of the kinds customarily insured against by Persons engaged in
the same or similar business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons and providing for not less than 30 days’ prior notice
to the Administrative Agent of termination, lapse or cancellation of such insurance.



     6.08. Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or property, except in such instances
in which (a) such requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith
would not reasonably be expected to have a Material Adverse Effect.



     6.09. Books and Records. Maintain (a) proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Borrower or any Restricted Subsidiary, as the case may be,
and (b) such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or
any Restricted Subsidiary, as the case may be.



     6.10. Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each
Lender to concurrently visit and inspect any of the properties of the Borrower or any Restricted
Subsidiary, to examine the corporate, financial and operating records of the Borrower or any
Restricted Subsidiary, and make copies thereof or abstracts therefrom, and to discuss the affairs,
finances and accounts of the Borrower or any Restricted Subsidiary with the directors, officers,
and independent public accountants of the Borrower or such Restricted Subsidiary, the reasonable
expenses incurred by the Administrative Agent in connection therewith to be paid by the Borrower,
at such reasonable times during normal business hours so long as no Default or Event of Default
shall then have occurred and be continuing, not more than twice during any calendar year, in each
case upon reasonable advance notice to the Borrower; provided, however, that when
an Event of Default exists the Administrative Agent or any Lender (or any of their respective
representatives or independent



78









 







contractors) may do any of the foregoing at the expense of the
Borrower at any time as often as may be reasonably desired during normal business hours and without
advance notice.



     6.11. Use of Proceeds. Use the proceeds of the Credit Extensions in accordance with Section 5.19.



     6.12. Additional Guarantors. Notify the Administrative Agent at the time that any Person becomes a Restricted
Subsidiary, and promptly thereafter (and in any event within 30 days), cause such Person to (a)
become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the
Guarantee and Collateral Agreement or such other document as the Administrative Agent shall
reasonably deem appropriate for such purpose, and (b) upon the request of the Administrative Agent,
deliver to the Administrative Agent documents of the types referred to in clauses (iii) and (iv) of
Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of the documentation
referred to in clause (a)), all in form, content and scope reasonably satisfactory to the
Administrative Agent.



     6.13. Borrowing Base Certificate and Related Reports. The Borrower shall deliver or cause to be delivered (at the expense of the Borrower) to the
Administrative Agent the following:



     (a) in no event less frequently than twice a month on or prior to (i) the fifteenth calendar
day of each month, calculating the Borrowing Base as of the first calendar day of such month and
(ii) the last calendar day of each month, calculating the Borrowing Base as of the fifteenth
calendar day of such month, in each case a Borrowing Base Certificate from the Borrower accompanied
by such supporting detail and documentation as shall be requested by the Administrative Agent in
its reasonable credit judgment; provided, however, to the extent, during any period set forth above, the Total Outstandings shall be equal to or exceed 80% of the
lesser of (x) the Borrowing Base and (y) the Aggregate Commitments (the “Enhanced Reporting
Level”), the Borrower shall deliver no less frequently than 7 days after the most recently
ended week, calculating the Borrowing Base as of the close of business of such week, the Borrowing
Base Certificate accompanied by such supporting detail and documentation as shall be requested by
the Administrative Agent in its reasonable credit judgment (and shall continue to deliver such
Borrowing Base Certificate on a weekly basis until two consecutive weeks elapsed during which the
Total Outstandings shall be less than the Enhanced Reporting Level);



     (b) upon request by the Administrative Agent, and in no event less frequently than 30 days
after the end of (i) each month, a monthly trial balance showing Receivables outstanding aged from
the statement date as follows: 1 to 30 days, 31 to 60 days, 61 to 90 days and 91 days or more,
accompanied by a comparison to the prior month’s trial balance and such supporting detail and
documentation as shall be requested by the Administrative Agent in its reasonable credit judgment
and (ii) each quarter, a summary of Eligible Inventory and Eligible Product in Transit by location
and type accompanied by such supporting detail and documentation as shall be requested by the
Administrative Agent in its reasonable credit judgment (in each case, together with a copy of all
or any part of such delivery requested by any Lender in writing after the First Restatement
Effective Date);



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     (c) on the date any Borrowing Base Certificate is delivered pursuant to Section
6.13(a), a collateral report with respect to the Loan Parties, including all additions and
reductions (cash and non-cash) with respect to Receivables of the Loan Parties, accompanied by such
supporting detail and documentation as shall be requested by the Administrative Agent in its
reasonable credit judgment;



     (d) at each time of delivery of financial statements pursuant to Section 6.01(a) or
(b): (i) a reconciliation of the Receivables trial balance and quarter-end Eligible
Inventory reports of the Loan Parties to the general ledger of the Loan Parties, in each case,
accompanied by such supporting detail and documentation as shall be requested by the Administrative
Agent in its reasonable credit judgment, and (ii) a general description of any property included in
the Collateral that has been disposed of other than in the ordinary course of business since the
date of the most recent collateral audit conducted pursuant to Section 6.13(e) and the
aggregate book value thereof;



     (e) on or before June 30 of each calendar year, a collateral audit to be conducted by an
auditor (which may include any Agent-Related Person), and in form, scope and substance, reasonably
satisfactory to the Administrative Agent; and



     (f) such other reports, statements and reconciliations with respect to the Borrowing Base or
Collateral of any or all Loan Parties as the Administrative Agent shall from time to time request
in its reasonable credit judgment.



     The delivery of each certificate and report or any other information delivered pursuant to
this Section 6.13 shall constitute a representation and warranty by the Borrower that the
statements and information contained therein are true and correct in all material respects on and
as of such date.



     6.14. Borrowing Base Verification. Any of the Administrative Agent’s officers, employees or agents (which shall include any
Agent-Related Person) shall have the right, not more than two times in any calendar year during
normal business hours (or at any time during normal business hours when an Event of Default shall
have occurred and be continuing), in the name of the Administrative Agent, any designee of the
Administrative Agent or the Borrower, to verify the validity, amount or any other matter relating
to Receivables, Eligible Inventory or Eligible Product in Transit by mail, telephone, electronic
communication, personal inspection or otherwise. The Borrower shall take reasonable steps
necessary to cooperate with the Administrative Agent in an effort to facilitate and promptly
conclude any such verification process. Notwithstanding the foregoing, none of the Administrative
Agent’s officers, employees or agents (which shall include any Agent-Related Person) shall have the
right to contact any third parties without the prior consent of the Borrower (which consent may be
granted or withheld in the Borrower’s sole discretion); provided that no such consent shall
be required following the occurrence and during the continuance of an Event of Default. For the
avoidance of doubt, any rights granted under this Section 6.14 to any of the Administrative
Agent’s officers, employees or agents (which shall include any Agent-Related Person), shall be in
addition to, and in supplement of, any rights granted pursuant to Section 6.10.



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     6.15. Further Assurances. From time to time execute and deliver, or cause to be executed and delivered, such
additional instruments, certificates or documents, and take all such actions, as the Administrative
Agent may reasonably request for the purposes of implementing or effectuating the provisions of
this Agreement and the other Loan Documents, or of more fully perfecting or renewing the rights of
the Administrative Agent and the Lenders with respect to the Collateral (or with respect to any
additions thereto or replacements or proceeds or products thereof or with respect to any other
property or assets hereafter acquired by the Borrower or any Restricted Subsidiary which may be
deemed to be part of the Collateral) pursuant hereto or thereto. Upon the exercise by the
Administrative Agent or any Lender of any power, right, privilege or remedy pursuant to this
Agreement or the other Loan Documents which requires any consent, approval, recording,
qualification or authorization of any Governmental Authority, the Borrower will execute and
deliver, or will cause the execution and delivery of, all applications, certifications, instruments
and other documents and papers that the Administrative Agent or such Lender may be required to
obtain from the Borrower or any of its Restricted Subsidiaries for such governmental consent,
approval, recording, qualification or authorization.



     6.16. Designation of Subsidiaries. The board of directors of the Borrower may at any time designate any Restricted Subsidiary
as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary, subject in
each case to the definitions of Restricted Subsidiary and Unrestricted Subsidiary; provided
that each Restricted Subsidiary shall at all times be a Guarantor under the Guarantee and
Collateral Agreement and, provided further, that except for the Subsidiaries listed
on Schedule 6.16 hereof which are, as of the Second Restatement Effective Date and until
designated otherwise in accordance with the terms hereof, Unrestricted Subsidiaries, no
designation by the board of directors of the Borrower of any Restricted Subsidiary as an
Unrestricted Subsidiary shall be effective unless:




     (a) the Borrower shall have delivered to the Administrative Agent written notice of
such designation, together with (i) a Borrowing Base Certificate, calculating the Borrowing
Base as of the date of the proposed effectiveness of such designation, demonstrating that
the Total Outstandings will not exceed the Borrowing Base after giving effect to such
designation (and any applicable prepayment of Total Outstandings pursuant to Section
2.06(b)) and (ii) a certificate, dated the date of such designation, setting forth
reasonably detailed calculations demonstrating pro forma compliance with the financial
covenants set forth in Section 7.11 after giving effect to such designation; and




     (b) immediately before and after giving effect to such designation, no Default or Event
of Default shall then have occurred and be continuing.



     For avoidance of doubt, the designation of any Restricted Subsidiary as an Unrestricted
Subsidiary shall constitute for purposes of Sections 7.02 and 7.06 an Investment
therein as of the date of such designation in an amount equal to the net book value of the
Borrower’s or the applicable Restricted Subsidiary’s investment therein, and the designation of any
Unrestricted Subsidiary as a Restricted Subsidiary shall constitute, inter alia, the incurrence at
the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.



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     6.17. Certain Permitted Acquisitions. Section 6.17 as set forth on Schedule 1.01(e) is incorporated herein by
reference.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly:



     7.01. Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following (collectively,
“Permitted Liens”):



     (a) Liens securing the Obligations pursuant to any Loan Document;



     (b) Liens existing on the Second Restatement Effective Date and listed on Schedule
7.01 and any renewals or extensions thereof, provided that the property covered thereby
is not increased and any renewal or extension of the obligations secured or benefited thereby is
permitted by Section 7.03(b);



     (c) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;



     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;



     (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like nature incurred in the ordinary
course of business;



     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;



     (h) Liens securing Indebtedness permitted under Section 7.03(e); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such



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Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition;



     (i) Liens on property of a Person existing at the time such Person is acquired or merged into
or consolidated with any Loan Party to the extent such acquisition, merger or consolidation is
otherwise permitted hereunder; provided that such Liens (i) are not created in anticipation
or contemplation of such acquisition, merger or consolidation, (ii) do not extend to property not
subject to such Liens at the time of such acquisition, merger or consolidation, (iii) are not more
favorable to the applicable lienholders than their existing Liens and (iv) secure Indebtedness or
other obligations in an aggregate amount not to exceed $25,000,000;



     (j) Liens of producers arising in the ordinary course of business under the New Mexico Oil and
Gas Products Lien Act or any similar statute in any other jurisdiction or under section 9-319 of
the UCC in effect in the States of Texas, Kansas, Montana, Utah and Wyoming or any other applicable
jurisdiction;



     (k) Liens on cash, Cash Equivalents and Cash Investments securing Swap Contracts;
provided that the aggregate amount of cash, Cash Equivalents and Cash Investments subject
to such Liens may at no time exceed $10,000,000;



     (l) Liens permitted under Section 7.03(j);



     (m) other Liens securing obligations in an aggregate amount not to exceed $25,000,000;
provided that such Liens do not in the aggregate materially detract from the value of any
Loan Party’s assets or materially impair the use thereof in the operation of its business; and



     (n) clause (n) of this Section 7.01 as set forth on Schedule 1.01(e)
is incorporated herein by reference.



     7.02. Investments. Make any Investments, except:



     (a) Investments held by the Borrower or such Subsidiary in the form of Cash Equivalents or
Cash Investments;



     (b) advances to officers, directors and employees of the Borrower and its Subsidiaries in an
aggregate amount not to exceed $2,500,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;



     (c) Investments of the Borrower in any Guarantor (other than Joint Venture Investments) and
Investments of any Guarantor in the Borrower or in another Guarantor (other than Joint Venture
Investments);



     (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;



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     (e) Investments (including Joint Venture Investments) outstanding on the Second Restatement
Effective Date and identified on Schedule 7.02;



     (f) Investments in any MLP Party in the form of debt instruments or equity interests issued by
such MLP Party that are received in consideration for logistics assets of the Borrower or any
Restricted Subsidiary; provided that fair market value is received by the Borrower and its
Restricted Subsidiaries in consideration for such assets;



     (g) Investments in UNEV Pipeline in an aggregate amount not in excess of $270,000,000;



     (h) other Joint Venture Investments in an aggregate amount not to exceed $40,000,000;



     (i) Guarantees permitted by Section 7.03;



     (j) Investments (other than Joint Venture Investments) consisting of Permitted Acquisitions;



     (k) Investments in HEP LP (i) to maintain a 2% general partnership interest in Holly Energy
Partners or (ii) in order to purchase additional limited partnership interests in Holly Energy
Partners and/or to provide funding to one or more MLP Parties for acquisitions of master limited
partnership qualifying assets or capital expenditures in an aggregate amount not to exceed
$40,000,000 at any one time; and



     (l) other Investments (other than Joint Venture Investments) in an aggregate amount not to
exceed $40,000,000.



     7.03. Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness outstanding on the Second Restatement Effective Date and listed on
Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof;
provided that (i) the amount of such Indebtedness to be refinanced, refunded, renewed or
extended is not increased at the time of such refinancing, refunding, renewal or extension except
by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder and (ii) any such refinancing, refunding, renewal or extension of
Indebtedness that is subordinated to the Obligations shall continue to be subordinated to the
Obligations on terms no less favorable to the Lenders than the terms of such Indebtedness to be
refinanced, refunded, renewed or extended;



     (c) Guarantees of any Loan Party in respect of Indebtedness of any other Loan Party otherwise
permitted hereunder;



     (d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under any Swap Contract, provided that (i) such obligations are (or were) entered
into



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by such Person in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person, and not
for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain
any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;



     (e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in Section
7.01(h); provided, however, that the aggregate amount of all such Indebtedness
at any one time outstanding shall not exceed $40,000,000;



     (f) Indebtedness of any Person existing at the time such Person is acquired or merged into or
consolidated with any Loan Party to the extent such acquisition, merger or consolidation is
otherwise permitted hereunder and any refinancings, refundings, renewals or extensions thereof;
provided that (i) any Liens in respect of such Indebtedness are otherwise permitted under
Section 7.01(i), (ii) such Indebtedness is not incurred in anticipation or contemplation of
such acquisition, merger or consolidation and (iii) with respect to any refinancings, refundings,
renewals or extensions, the amount of such Indebtedness to be refinanced, refunded, renewed or
extended is not increased at the time of such refinancing, refunding, renewal or extension except
by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder;



     (g) secured Indebtedness in an aggregate principal amount not to exceed $25,000,000 at any
time outstanding;



     (h) Permitted Unsecured Indebtedness;



     (i) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under the Indemnification Agreements in an aggregate amount not to exceed $210,000,000;
provided that following the consummation of the Asset Contribution, the amount of such
obligations shall be increased up to an amount not to exceed $275,000,000 in the aggregate;



     (j) Indebtedness in respect of any tax exempt bonds or notes, economic or industrial
development financing, tax beneficial or other municipal, county or state sponsored financing, or
similar government sponsored financing; provided that (i) such Indebtedness shall be
incurred by any Loan Party acquiring the Specified Assets or any Subsidiary of such Loan Party,
(ii) the proceeds of such Indebtedness shall be used to make or refinance acquisitions and/or for
capital expenditures, in each case made after the Second Restatement Effective Date; (iii) such
Indebtedness shall be secured by the assets acquired, replaced or constructed in connection with
the incurrence of such Indebtedness by any Loan Party acquiring the Specified Assets
(provided that such Indebtedness shall not be secured by Receivables, Pledged Cash,
Eligible Inventory and Eligible Product In Transit owned from time to time or by any of the
Borrower’s or any of the Restricted Subsidiary’s property, plant and equipment owned as of the
Second Restatement Effective Date); (iv) the Borrower shall deliver to the Administrative Agent
reasonably detailed



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description of items to be financed with the proceeds of such Indebtedness; and
(v) no Default or Event of Default shall have occurred or be continuing at the time of the
incurrence of such Indebtedness; and



     (k) clause (k) of this Section 7.03 as set forth on Schedule 1.01(e)
is incorporated herein by reference.



     7.04. Fundamental Changes. Except as otherwise permitted by Section 7.05, merge, dissolve, liquidate,
consolidate with or into another Person, or Dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned or hereafter acquired)
to or in favor of any Person, except that, so long as no Default exists or would result therefrom:



     (a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall
be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any Guarantor is merging with another Subsidiary which is not a Guarantor, the Guarantor
shall be the continuing or surviving Person; and



     (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the
transferor in such a transaction is a Guarantor, then the transferee must either be the Borrower or
a Guarantor.



     7.05. Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:



     (a) Dispositions of obsolete or other property that is no longer materially beneficial in its
business, whether now owned or hereafter acquired, in the ordinary course of business;



     (b) Dispositions of inventory in the ordinary course of business;



     (c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of other property used in the ordinary course of
business or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase
price of such other property;



     (d) Dispositions of property by any Subsidiary to the Borrower or by any Loan Party to any
other Loan Party;



     (e) Dispositions consisting of Investments permitted by Section 7.02(a), (d),
(e), (h) or (l);



     (f) Dispositions (i) permitted by Section 7.04 or (ii) described on Schedule
7.05;



     (g) Dispositions by the Borrower and its Restricted Subsidiaries (i) of logistics assets and
other master limited partnership qualifying assets (which shall not include, in any event, any
refineries owned by the Borrower and/or its Restricted Subsidiaries on the Second Restatement
Effective Date) of the Borrower or any such Restricted Subsidiary to any MLP Party (subject to



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the
receipt of cash or the other consideration described in Section 7.02(f)) and (ii) not
otherwise permitted under this Section 7.05; provided that (A) at the time of such
Disposition, no Default shall exist or would result from such Disposition and (B) except with
respect to Dispositions of assets to any MLP Party pursuant to the MLP Documents or otherwise
permitted under clause (i) above, the aggregate book value of all property Disposed of in reliance
on this clause (g) in any fiscal year shall not exceed $25,000,000;



     (h) Dispositions by the Borrower or any Restricted Subsidiary of assets in a Sale and
Leaseback Transaction if and to the extent that the corresponding lease obligation is permitted
under Section 7.03(e);



     (i) Dispositions by the Borrower of any of its Investments pursuant to Section 7.02(f)
or (k); provided that (i) the Borrower shall receive 100% of consideration in the
form of cash, (ii) after giving effect to any such Disposition, no Default or Event of Default
shall have occurred and be continuing and (iii) the Borrower shall be in compliance on a pro forma
basis, after giving effect to such Disposition, with all covenants set forth in Section
7.11 as of the last day of the applicable period covered by the most recently delivered
Compliance Certificate;



     (j) Dispositions by the Borrower or any Restricted Subsidiary of its interest in Roadrunner
Pipeline, L.L.C. or Lovington — Artesia, L.L.C. or any of the logistics assets thereof to (i) HEP,
or (ii) any third party; provided that in the event of any such Disposition to a third
party: (A) the Borrower or such Restricted Subsidiary shall receive 100% of consideration in the
form of cash, (B) after giving effect to any such Disposition, no Default or Event of Default shall
have occurred and be continuing and (C) the Borrower shall be in compliance on a pro forma basis,
after giving effect to such Disposition, with all covenants set forth in Section 7.11 as of
the last day of the applicable period covered by the most recently delivered Compliance
Certificate; and



     (k) the Disposition of Holly UNEV pursuant to the terms set forth in the Option Agreement
dated as of January 31, 2008, by and among the Borrower, Holly UNEV, Navajo Pipeline Co., L.P., a
Delaware limited partnership, Holly Logistic Services, L.L.C., a Delaware limited liability
company, HEP LP, Holly Energy Partners, HEP Logistics GP, L.L.C., a Delaware limited liability
company, and Holly Energy Partners Operating, L.P., a Delaware limited partnership



     provided, however, that any Disposition pursuant to clauses (a) through (j) shall
be for fair market value.



     7.06. Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that:



     (a) each Subsidiary may make Restricted Payments to the Borrower and any Guarantor (and, in
the case of a Restricted Payment by a non-wholly-owned Subsidiary, to the Borrower and any
Subsidiary and to each other owner of capital stock or other equity interests of such Subsidiary on
a pro rata basis based on their relative ownership interests);




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     (b) the Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common equity interests of such Person;



     (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its
common stock or other common equity interests or warrants or options to acquire any such shares
with the proceeds received from the substantially concurrent issue of new shares of its common
stock or other common equity interests; and



     (d) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or
otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such
shares for cash in an aggregate amount of all such dividends, purchases, redemptions and other
acquisitions made after the First Restatement Effective Date not to exceed the sum of (x)
$300,000,000, plus (y) an amount equal to 50% of Consolidated Net Income of the Borrower
and its Restricted Subsidiaries arising after December 31, 2007, plus (z) an amount equal
to 50% of the aggregate increases in Shareholders’ Equity of the Borrower and its Restricted
Subsidiaries arising after December 31, 2007 by reason of the issuance and sale of capital stock or
other equity interests of the Borrower or any Restricted Subsidiary (other than issuances to the
Borrower or any Restricted Subsidiary), including upon any conversion of debt securities of the
Borrower into such capital stock or other equity interests, and computed on a cumulative
consolidated basis with other such transactions by the Borrower since that date; provided
that immediately after giving effect to such proposed action, no Default would exist.



     7.07. Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Borrower and its Restricted Subsidiaries on
the Second Restatement Effective Date or any business substantially related or incidental thereto.



     7.08. Transactions with Affiliates. Except as set forth on Schedule 7.08, enter into
any transaction of any kind with any Affiliate of the Borrower, whether or not in the ordinary
course of business, other than on fair and reasonable terms substantially as favorable to the
Borrower or such Restricted Subsidiary as would be obtainable by the Borrower or such Restricted
Subsidiary at the time in a comparable arm’s length transaction with a Person other than an
Affiliate.



     7.09. Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that (a) limits the ability (i) of any Restricted Subsidiary to make
Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to the
Borrower or any Guarantor, (ii) of any Restricted Subsidiary to Guarantee the Indebtedness of the
Borrower or (iii) of the Borrower or any Restricted Subsidiary to create, incur, assume or suffer
to exist Liens on property of such Person; provided, however, that this clause
(iii) shall not prohibit (x) any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.03(e) solely to the extent any such negative pledge
relates to the property financed by or the subject of such Indebtedness or Section 7.03(h)
(provided that any such negative pledge shall not restrict or prohibit any of the Liens
pursuant to the Loan Documents or any other similar senior secured credit facility) and (y)
clause (y) of this proviso as set forth on Schedule 1.01(e) is incorporated herein
by reference; or (b)



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requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person.



     7.10. Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose
or for any other purpose not specifically permitted hereunder.



     7.11. Financial Covenants.



     (a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Borrower to be less than 3.00:1.00.



     (b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at any time
during any period of four fiscal quarters of the Borrower to be greater than 3.50:1.00.



     7.12. Fiscal Periods. Change its fiscal year, any fiscal quarter or any other fiscal period.



     7.13. Change Name; State of Formation. Without having given the Administrative Agent not less
than 10 Business Days’ prior written notice thereof and after having executed and delivered to the
Administrative Agent such further instruments and documents in connection therewith as may be
required by the Administrative Agent, change the Borrower’s or any Guarantor’s name, reincorporate,
reform or otherwise reorganize the Borrower or any Guarantor, or change the Borrower’s or any
Guarantor’s jurisdiction of organization.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01. Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower or any other Loan Party (as applicable) fails to pay
(i) when and as required to be paid herein, any amount of principal of any Loan or any L/C
Obligation, or (ii) within five days after the same becomes due, any interest on any Loan or on any
L/C Obligation, or any fee due hereunder, or (iii) within ten days after the same becomes due, any
other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05,
6.10, 6.11, 6.12, 6.13 or 6.14 or Article VII; or
in Section 5 (other than Sections 5.3, 5.4 and 5.5(c) thereof) of
the Guarantee and Collateral Agreement; or



     (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for 30 days; provided,
however, that if such failure is not reasonably capable of cure within such 30-day period
and the Borrower has



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undertaken promptly to cure such failure and is thereafter diligently pursuing such cure, the
period referred to above shall be extended for an additional 30 days; or



     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered in connection herewith or
therewith shall be materially incorrect or misleading when made or deemed made; or



     (e) Cross-Default. (i) The Borrower or any Restricted Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount for all such Indebtedness
and Guarantees (including amounts owing to all creditors under any combined or syndicated credit
arrangement) equal to or greater than $40,000,000, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the
effect of which default or other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased
or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under
such Swap Contract as to which the Borrower or any Restricted Subsidiary is the Defaulting Party
(as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap
Contract as to which the Borrower or any Restricted Subsidiary is an Affected Party (as so defined)
and, in either event, the Swap Termination Value owed by the Borrower or such Restricted Subsidiary
as a result thereof is greater than $40,000,000; or



     (f) Insolvency Proceedings; Etc. Any Loan Party or any of its Material Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes
an assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) The Borrower or any Material Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or



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     (h) Judgments. There is entered against the Borrower or any Restricted Subsidiary (i)
a final judgment or order for the payment of money in an aggregate amount exceeding $40,000,000 (in
each case, to the extent such final judgment or order remains unpaid or is not covered by
independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any
one or more non-monetary final judgments that have, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of
10 consecutive days during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or would reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of $40,000,000, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of $40,000,000; or



     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or satisfaction in full
of all the Obligations, ceases to be in full force and effect; or any Loan Party (or any other
Person in any judicial or administrative proceeding to the extent that any such judicial or
administrative proceeding is not dismissed within 180 days) contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies in writing that it has any or further
liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any
Loan Document; or



     (k) Change of Control. There occurs any Change of Control with respect to the
Borrower; or



     (l) Security Interest; Guarantee. The Guarantee and Collateral Agreement shall cease,
for any reason (other than by reason of the express release in accordance with the terms and
conditions thereof), to be in full force and effect, or any Loan Party or any Affiliate of any Loan
Party shall so assert, or any Lien created or purported to be created under the Guarantee and
Collateral Agreement shall cease to be enforceable and of the same effect and priority created or
purported to be created thereby. The Guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason (other than by reason of the express release in
accordance with the terms and conditions thereof), to be in full force and effect or any Loan Party
or any Affiliate of any Loan Party shall so assert.



     8.02. Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;



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     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;



     (c) require that the Borrower Cash Collateralize the L/C Obligations in accordance with
Section 2.03(g); and



     (d) subject to the terms of the Guarantee and Collateral Agreement which provide that certain
rights and remedies may only be exercised upon the occurrence and during the continuance of an
Account Control Default, exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable law;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.




     8.03. Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02) or as otherwise permitted under Section 6.4 of the Guarantee and
Collateral Agreement, any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including reasonable fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including reasonable fees, charges and disbursements of counsel to the
respective Lenders and the L/C Issuer) and amounts payable under Article III, ratably among
them in proportion to the respective amounts described in this clause Second payable to
them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts described in this
clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, ratably among the Lenders in proportion to the respective amounts
described in this clause Fourth held by them;



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     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit;



     Sixth, to payment of that portion of the Obligations constituting amounts payable to
Qualified Counterparties that are Secured Parties in respect of interest rate protection Swap
Contracts and to that portion of the Obligations constituting Cash Management Obligations, in each
case, ratably among them in proportion to the respective amounts described in this clause
Sixth payable to them; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.



     Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above or otherwise promptly
returned to the Borrower.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01. Appointment and Authority. (a) Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third
party beneficiary of any of such provisions.



     (b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders and the L/C Issuer hereby irrevocably appoints and authorizes
the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties
to secure any of the Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any
co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to
Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies
thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all
provisions of this Article IX and Article X (including Sections 10.04(b) and
10.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral
agent” under the Loan Documents) as if set forth in full herein with respect thereto.



     9.02. Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may



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exercise the same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. 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 the Borrower
or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.



     9.03. Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative 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 expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable law;
and



     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) 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 the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



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     9.04. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely
upon, 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. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative 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.



     9.05. Delegation of Duties. The Administrative Agent may perform any and all of 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 the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of 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 the Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.



     9.06. Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer 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, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders (with the consent of the Borrower; provided that
no such consent will be required following the occurrence and during the continuance of a Default
or Event of Default) and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, in consultation with the Borrower, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided



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for above in this Section. Upon the acceptance of a successor’s appointment as Administrative
Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations hereunder or under
the other Loan Documents (if not already discharged therefrom as provided above in this Section).
The fees payable by the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such successor. After
the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of its duties and obligations hereunder or under the other Loan Documents, and (c) the successor
L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangement satisfactory to the retiring
L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such
Letters of Credit.



     9.07. Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties 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 and the L/C Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties 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, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.



     9.08. No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Persons listed on the cover page hereof or identified on the signature pages hereto as “syndication
agents,” “co-documentation agents,” “co-agent,” “book manager,” “lead manager,” “arranger” or “lead
arranger” shall have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender,
a Swing Line Lender or the L/C Issuer hereunder.



     9.09. Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the



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Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the L/C Issuer and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.03(i) and (j), 2.10 and 10.04) allowed in such
judicial proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, if the Administrative Agent shall consent to the making
of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.10 and 10.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer or in any such proceeding.



     9.10. Collateral and Guarantee Matters. The Lenders and the L/C Issuer irrevocably authorize
the Administrative Agent, at its option and in its discretion,




     (a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part
of or in connection with any sale permitted hereunder or under any other Loan Document, or
(iii) subject to Section 10.01, if approved, authorized or ratified in writing by
the Required Lenders;




     (b) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by Section 7.01(i); and




     (c) to release any Guarantor, including Roadrunner Pipeline, L.L.C. and Lovington —
Artesia, L.L.C., from its obligations under the Guarantee and Collateral



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Agreement if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its obligations under the Guaranty and
Collateral Agreement pursuant to this Section 9.10. In each case as specified in this
Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver
to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence
the release of such item of Collateral from the assignment and security interest granted under the
Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from
its obligations under the Guaranty and Collateral Agreement, in each case in accordance with the
terms of the Loan Documents and this Section 9.10.



     9.11. Indemnification of the Administrative Agent. To the extent required by any applicable
Law, the Administrative Agent may withhold from any payment to any Lender or the L/C Issuer an
amount equivalent to any applicable withholding tax. If the IRS or any other Governmental
Authority of the United States or other jurisdiction asserts a claim that the Administrative Agent
did not properly withhold tax from amounts paid to or for the account of any Lender or the L/C
Issuer (because the appropriate form was not delivered, was not properly executed, or because such
Lender or the L/C Issuer failed to notify the Administrative Agent of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other
reason), such Lender or the L/C Issuer shall indemnify and hold the Administrative Agent harmless,
and shall make payment in respect thereof within ten (10) days after demand therefor, for all
amounts paid, directly or indirectly, by the Administrative Agent, as tax or otherwise, including
penalties and interest, and including any taxes imposed by any jurisdiction on the amounts payable
to the Administrative Agent under this Section 9.11, together with all costs and expenses
(including attorneys fees and expenses). Each Lender and the L/C Issuer hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or
the L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any
amount due to the Administrative Agent under this Section 9.11. The obligations of the
Lenders and the L/C Issuer under this Section 9.11 shall survive the payment of all
Obligations and the resignation or replacement of the Administrative Agent.



ARTICLE X.

MISCELLANEOUS




     10.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or
the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:



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     (a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iii) of the final proviso to this Section 10.01) any fees
or other amounts payable hereunder or under any other Loan Document, or (subject to Section
1.03(b)) change the manner of computation of any financial ratio (including any change in any
applicable defined term) used in determining the Applicable Rate that would result in a reduction
of any interest rate on any Loan or any fee payable hereunder without the written consent of each
Lender directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;



     (e) change Section 2.14 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



     (f) change any provision of this Section or the definition of “Required Lenders,”
“Supermajority Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the written consent of each Lender; or



     (g) except as expressly provided in Section 9.10, release any Guarantor from the
Guarantee and Collateral Agreement without the written consent of each Lender or release all or a
material part of the Collateral, in each case except to the extent expressly permitted under the
Loan Documents;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement or any other Loan Document; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the Administrative Agent
under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights
or privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the


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Commitment of such Lender may not be increased or extended without the consent of such Lender.




     10.02. Notices; Effectiveness; Electronic Communications. (a) Notices Generally.
Except in the case of notices and other communications expressly permitted to be given by telephone
(and except as provided in subsection (b) below), all 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 telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:




     
(i) if to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below
shall be effective as provided in such subsection (b).




     (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



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     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any
other Person for indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).



     (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all times have selected
the “Private Side Information” or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made available through the
“Public Side Information” portion of the Platform and that may contain material non-public
information with respect to the Borrower or its securities for purposes of United States Federal or
state securities laws.



     (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices) purportedly given by a Responsible Officer of the Borrower even if (i)
such notices were not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. The Borrower shall indemnify the
Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by such Person



101









 







on each notice purportedly given by a Responsible Officer of the Borrower. All telephonic
notices to and other telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such recording.



     10.03. No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and provided under each
other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.



     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to each
such entity’s benefit (solely in its capacity as Administrative Agent) hereunder and under the
other Loan Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and
remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as
the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising
setoff rights in accordance with Section 10.08 (subject to the terms of Section
2.14), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its
own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief
Law; and provided, further, that if at any time there is no Person acting as
Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders
shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section
8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding
proviso and subject to Section 2.14, any Lender may, with the consent of the Required
Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.



     10.04. Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and administration of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or the L/C Issuer) in connection with the enforcement or protection of its rights (A) in
connection with this



102









 







Agreement and the other Loan Documents, including its rights under this Section, or (B) in
connection with Loans made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.



     (b) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each
Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges
and disbursements of counsel for any Indemnitee), incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or
any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party
thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE
COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party
against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under
any other Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent jurisdiction.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer 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 any such sub-agent) or the L/C Issuer in its capacity as such, or against
any Related Party of any of the foregoing acting for the



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Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity.
The obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.13(e).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
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, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.



     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after written demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.



     10.05. Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a)
to the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate
from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of
the preceding sentence shall survive the payment in full of the Obligations and the termination of
this Agreement.



     10.06. Successors and Assigns.



     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that no



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Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent, each Lender and the Swing Line Lender and no
Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way
of participation in accordance with the provisions of subsection (d) of this Section or (iii) by
way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of
this Section (and any other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by
reason of this Agreement.



     (b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Commitment and
the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it); provided that (i) except in the case of an
assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the
time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund (as defined in subsection (g) of this Section) with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder)
subject to each such assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000
unless each of (A) the Administrative Agent, (B) so long as no Event of Default has occurred and is
continuing, the Borrower and (C) the Swing Line Lender, otherwise consents (each such consent not
to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations under this
Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall
not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans; (iii)
any assignment of a Commitment must be approved by the Administrative Agent and the L/C Issuer
unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 payable by the applicable assignor, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the 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 3.01, 3.04, 3.05, and
10.04 with respect to facts and circumstances occurring prior to the effective date of



105









 







such assignment). Upon request, the Borrower (at its expense) shall execute and deliver a
Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.



     (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative 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. In addition,
the Administrative Agent shall maintain in the Register the designation, and revocation of
designation, of any Lender as a Defaulting Lender or an Impacted Lender of which it has received
notice. The Register shall be available for inspection by the Borrower at any reasonable time and
from time to time upon reasonable prior notice. In addition, at any time that a request for
consent for a material or other substantive change to the Loan Documents is pending, any Lender
wishing to consult with other Lenders in connection therewith may request and receive from the
Administrative Agent a copy of the Register.



     (d) Any Lender may at any time, upon notice to (but without the consent of) the Borrower and
the Administrative Agent, sell participations to any Person (other than (A) a natural person, (B)
the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (C) any Defaulting Lender or
its Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights
and/or obligations under this Agreement (including all or a portion of its Commitment and/or the
Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to
it); provided 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 and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, waiver or
other modification described in the first proviso to Section 10.01 that directly affects
such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.14 as though it were a
Lender.



     (e) A Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.04 than the applicable Lender would have been entitled to receive with
respect to the



106









 







participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 10.14 and Section
3.01(e) as though it were a Lender.



     (f) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement (including under its Note, if any) to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



     (g) As used herein, the following terms have the following meanings:




     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an
Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the
Administrative Agent and the L/C Issuer, and (ii) unless an Event of Default has occurred
and is continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not
include (x) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (ii) any
Defaulting Lender or its Subsidiaries.




     “Fund” means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.




     “Approved Fund” means any Fund 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.



     (h) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     (i) Resignation as L/C Issuer or Swing Line Lender After Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, upon 30 days’ notice to
the Borrower and the Lenders, resign as L/C Issuer and/or as a Swing Line Lender. In the event of
any such resignation as L/C Issuer and/or as a Swing Line Lender, the Borrower shall be entitled to
appoint from among the Lenders a successor L/C Issuer and/or a Swing Line Lender hereunder;
provided, however, that no failure by the Borrower to




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appoint any such successor shall affect the resignation of Bank of America as L/C Issuer and/or as
a Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain
all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C
Obligations with respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If
Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line
Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders to make Base Rate
Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section
2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C
Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such Letters of Credit.




     10.07. Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, advisors and representatives (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
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 laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a
source other than the Borrower. For purposes of this Section, “Information” means all
information received from any Loan Party or any Subsidiary thereof relating to any Loan Party or
any Subsidiary thereof or their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis
prior to disclosure by any Loan Party or any Subsidiary thereof, provided that, in the case
of information received from a Loan Party or any such Subsidiary after the Second Restatement
Effective Date, 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
to its own confidential information.



108









 





     Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including United States Federal and state securities Laws.



     10.08. Right of Set-off. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower now or hereafter existing under this Agreement or any
other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or
office of such Lender or the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness; provided that in the event that any Defaulting Lender shall
exercise any such right of setoff, all amounts so set off (other than amounts accrued and owing for
(x) interest due and owing to such Defaulting Lender pursuant to Section 2.09, and (y)
Letter of Credit Fees which such Defaulting Lender is entitled to receive pursuant to Section
2.03(i), all of which shall nevertheless remain subject to Section 2.13) shall be paid
over immediately to the Administrative Agent for application in accordance with the provisions of
Section 2.08(c) and, pending such payment, shall be segregated by such Defaulting Lender
from its other funds and deemed held in trust for the benefit of the Administrative Agent and the
Lenders. The rights of each Lender, the L/C Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer
agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the validity of
such setoff and application.



     10.09. Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



109









 





     10.10. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.



     10.11. Integration. This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.



     10.12. Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.



     10.13. Severability. If any provision of this Agreement or the other Loan Documents is held
to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.13, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders or Impacted Lenders shall be limited by Debtor Relief
Laws, as determined in good faith by the Administrative Agent, the L/C Issuer or the Swing Line
Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not
so limited.



     10.14. Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender is a Defaulting Lender or an Impacted Lender other than a Defaulting Lender or an Impacted
Lender that has fully funded its respective portions of all outstanding Loans and provided Cash
Collateral or other credit support pursuant to Sections 2.03 and 2.04, as
applicable, to eliminate Disproportionate Facility Risk attributable to it with respect to Letters
of Credit and Swing Line Loans, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the



110









 







Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents required by, Section
10.06), all of its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment), provided that:



     (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);



     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



     10.15. Governing Law.



     (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK;
PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.



     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE COUNTY OF NEW YORK OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
WAIVES PERSONAL SERVICE OF



111









 







ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE
LAW OF SUCH STATE.



     10.16. Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.17. No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arranger are arm’s-length
commercial transactions between the Borrower and its Affiliates, on the one hand, and the
Administrative Agent and the Arranger, on the other hand, (B) the Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of
the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative
Agent and the Arranger each is and has been acting solely as a principal and, except as expressly
agreed in writing by the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B)
neither the Administrative Agent nor the Arranger has any obligation to the Borrower or any of its
Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and the
Arranger and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and neither the
Administrative Agent nor the Arranger has any obligation to disclose any of such interests to the
Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and
releases any claims that it may have against the Administrative Agent and the Arranger with respect
to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.



     10.18. USA PATRIOT ACT NOTICE. EACH LENDER THAT IS SUBJECT TO THE ACT (AS HEREINAFTER
DEFINED) 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 (TITLE III OF PUB. L. 107-56
(SIGNED INTO LAW OCTOBER 26, 2001)) (THE “ACT”), IT



112









 







IS REQUIRED TO OBTAIN, VERIFY AND RECORD INFORMATION THAT IDENTIFIES EACH LOAN PARTY, WHICH
INFORMATION INCLUDES THE NAME AND ADDRESS OF EACH LOAN PARTY AND OTHER INFORMATION THAT WILL ALLOW
SUCH LENDER OR THE ADMINISTRATIVE AGENT, AS APPLICABLE, TO IDENTIFY EACH LOAN PARTY IN ACCORDANCE
WITH THE ACT.



     10.19. Amendment and Restatement. It is the intention of each of the parties hereto that (i)
the Restated Credit Agreement be amended and restated so as to preserve the perfection and priority
of all security interests securing indebtedness and obligations under the Original Credit
Agreement, the Restated Credit Agreement and the other Loan Documents, (ii) all Indebtedness and
Obligations of the Borrower hereunder and thereunder shall continue to be secured by the Security
Documents, and (iii) this Second Amended and Restated Credit Agreement does not constitute a
novation or termination of the obligations and liabilities existing under the Original Credit
Agreement or the Restated Credit Agreement. The parties hereto further acknowledge and agree that
this Agreement constitutes an amendment of the Restated Credit Agreement made under and in
accordance with the terms of Section 10.01 of the Restated Credit Agreement. In addition,
unless specifically amended hereby, each of the Loan Documents, the Exhibits and Schedules shall
continue in full force and effect and, from and after the Second Restatement Effective Date, all
references to the “Credit Agreement” contained therein shall be deemed to refer to this Second
Amended and Restated Credit Agreement.



[Remainder of Page Intentionally Left Blank]




113









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	HOLLY CORPORATION, a Delaware corporation, as Borrower

 	 
	 	By:  	 	 
	 	 	Bruce R. Shaw 	 
	 	 	Senior Vice President


and Chief Financial Officer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as 

Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Lender, Swing Line Lender and L/C Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	UBS LOAN FINANCE LLC, as a Lender and

Co-Documentation Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender and Co-Documentation Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	UNION BANK OF CALIFORNIA, N.A., as a Lender and Syndication Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COMPASS BANK, as a Lender and Syndication Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CAPITAL ONE, N.A., as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	UMB BANK ARIZONA, N.A., as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COMERICA BANK, as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	RZB FINANCE LLC, as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	GUARANTY BANK, as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 





SCHEDULE 1.01(A)




APPROVED ACCOUNT DEBTORS




Benchmark Resources

BNSF Railway Co.

BP Products North America

BP West Coast Products LLC

Chevron Products Co

Chevron USA Inc

ConocoPhillips Co

Costco Wholesale Inc

ExxonMobil Oil Corporation

Murphy Oil USA

Safeway Inc

Shell Oil Products US

Smith’s Food and Drug Centers

Southwest Airlines Company

Sunoco Inc.

Valero Energy Corp.

Vulcan Materials Co.




 









 





SCHEDULE 1.01(b)




DESIGNATED CUSTOMERS




Benchmark Resources

BP Products North America

BP West Coast Products LLC

Chevron Products Co

Chevron USA Inc

ConocoPhillips Co

Costco Wholesale Inc

ExxonMobil Oil Corporation

Shell Oil Products US




 









 





SCHEDULE 1.01(c)




ELIGIBLE GOVERNMENT CONTRACTS




Army Air Force Exchange Service

Defense Energy Support Center




 









 





SCHEDULE 1.01(d)




EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Letter of	 	 	Issuance/Renewal	 
	Beneficiary	 	Amount	 	 	Expiration	 	 	Credit Number	 	 	Date	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	New Mexico Self
Insurers Guarantee
Fund
	 	$	300,000	 	 	June 20, 2009	 	 	3077312	 	 	8/29/2007 (renewal date)
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pacific Employers
Insurance Company
	 	$	340,000	 	 	April 30, 2009	 	 	7414569	 	 	5/1/2008 (renewal date)
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Zurich American
Insurance Company
	 	$	1,830,000	 	 	April 30, 2009	 	 	7414568	 	 	5/1/2008 (renewal date)
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CCPS
Transportation, LLC
	 	$	7,300,000	 	 	March 5, 2010	 	 	3098853	 	 	3/5/2009 (issue date)






 









 






SCHEDULE 1.01(e)

PRIVATE AND CONFIDENTIAL




SPECIFIED ASSETS




Defined Terms.



“Indebtedness Period” means a period not to exceed 35 days (or as otherwise consented to by
the Administrative Agent in its sole discretion, but in any event not to exceed 60 days in the
aggregate) following the consummation of the acquisition contemplated pursuant to the Acquisition
Documentation.



“Release Event” means the earlier of: (i) the expiration of the Indebtedness Period and
(ii) upon a notice from the Borrower to the Administrative Agent and its outside counsel, which
shall be on the date the Indebtedness permitted pursuant to Section 7.03(k) is paid in full
or substantially paid in full (without regard to any disputed amounts, whether or not contingent or
subject to a reserve).



“Seller” means SUNOCO, INC. (R&M), a corporation organized and existing under the laws of
the Commonwealth of Pennsylvania, and/or certain of its Affiliates.



“Specified Assets” means the refinery and related assets located at 1700 South Union
Avenue, Tulsa, OK 74107, and any other assets sold to Holly — MidCon pursuant to the Acquisition
Documentation.



“Specified Inventory” means the portion of the Specified Assets consisting of inventory
sold or transferred pursuant to the Acquisition Documentation and any replacements thereof.




Affirmative Covenants.




     6.17. Certain Permitted Acquisitions.



     (a) On or prior to the consummation of the acquisition of the Specified Assets, the Borrower
shall deliver, or cause to be delivered to the Administrative Agent and the Lenders:




     (i) all Acquisition Documentation related to such Permitted Acquisition; and




     (ii) (A) annual financial projections concerning the Person or business being acquired
for the fiscal years 2009 and 2010, (B) quarterly financial projections concerning the
Person or business being acquired for eight consecutive quarters commencing with the first
fiscal quarter of 2009, and (C) evidence that (1) the Environmental Protection Agency has
extended the deadline for such Person or business to comply with the applicable ultra low
sulfur diesel regulations until at least April 30, 2011, and (2) at the time of the
consummation of the acquisition of the Specified Assets, the reasonably estimated capital
expenditures required to comply with such ultra low sulfur diesel regulations of the
Environmental Protection Agency do not exceed an aggregate amount of $165,000,000.



 









 





     (b) On or prior to 29 days following the consummation of the acquisition contemplated pursuant
to the Acquisition Documentation, each Loan Party shall, and shall cause the Seller to, as the case
may be, execute and deliver to Latham & Watkins, outside counsel to the Administrative Agent, to be
effective automatically, irrevocably and immediately upon the Release Event (i) release of Liens
and evidence of termination of all Liens or other security interests (including UCC termination
statements) granted to the Seller on the Specified Inventory and (ii) a duly executed collateral
access agreement (or similar document) in respect of the Specified Inventory, in each case in a
form attached to the Acquisition Documentation in form and substance reasonably satisfactory to the
Administrative Agent.



     (c) Effective immediately upon the occurrence of the Release Event, the Borrower shall cause
Holly — MidCon to become a Grantor under the Security Documents.



Negative Covenants.




     Section 7.01. Liens.



     (n) Liens securing Indebtedness permitted under Section 7.03(k).



     Section 7.03. Indebtedness.



     (k) Indebtedness incurred by Holly — MidCon outstanding to the Seller pursuant to the
Acquisition Documentation in an aggregate amount not to exceed the value of the Specified Inventory
pursuant to the Acquisition Documentation and the obligations owing to the Seller thereunder;
provided that (i) good legal title, free and clear of all Liens (other than Liens of the
Seller on the Specified Inventory, carriers’ or warehousemen’s Liens arising in the ordinary course
of business and first purchaser Liens to the extent applicable) in respect of the Specified Assets
shall transfer to Holly — MidCon upon the consummation of the acquisition contemplated pursuant to
the Acquisition Documentation, (ii) such Indebtedness shall be outstanding solely during the
Indebtedness Period and (iii) such Indebtedness shall be secured solely by the Specified Inventory.



     Section 7.09. Burdensome Agreements.



     Subsection (a)(iii) clause (y) of the proviso. any Liens incurred or provided
in favor of any holder of Indebtedness permitted pursuant to Section 7.03(k).



 









 





SCHEDULE 1.01(f)




Definition of Asset Contribution




     “Asset Contribution” means the contribution of certain asphalt terminals and/or any
related logistics assets by one or more Loan Parties to HEP LP or its Subsidiaries.



 









 





SCHEDULE 2.01




COMMITMENTS

AND PRO RATA SHARES




	 	 	 	 	 	 	 	 	 
	 	 	Revolving Credit	 	 
	Lender	 	Commitment	 	Pro Rata Share
	 
	Bank of America, N.A.
	 	$	47,500,000.00	 	 	 	15.833	%
	Compass Bank
	 	$	46,000,000.00	 	 	 	15.333	%
	Union Bank of California, N.A.
	 	$	20,000,000.00	 	 	 	06.667	%
	U.S. Bank National Association
	 	$	25,000,000.00	 	 	 	08.333	%
	UBS Loan Finance LLC
	 	$	25,000,000.00	 	 	 	08.333	%
	Capital One, N.A.
	 	$	25,000,000.00	 	 	 	08.333	%
	PNC Bank, National Association
	 	$	24,000,000.00	 	 	 	08.000	%
	UMB Bank Arizona, N.A.
	 	$	20,000,000.00	 	 	 	06.667	%
	Guaranty Bank
	 	$	17,500,000.00	 	 	 	05.833	%
	Comerica Bank
	 	$	17,500,000.00	 	 	 	05.833	%
	Wells Fargo Bank, N.A.
	 	$	17,500,000.00	 	 	 	05.833	%
	RZB Finance LLC
	 	$	15,000,000.00	 	 	 	05.000	%
	Total
	 	$	300,000,000.00	 	 	 	100.000	%







 









 






SCHEDULE 5.06




LITIGATION



None.




 









 








SCHEDULE 5.09




ENVIRONMENTAL MATTERS



None.





 











 





SCHEDULE 5.13




SUBSIDIARIES




AND OTHER EQUITY INVESTMENTS



Part (a). Subsidiaries.




Navajo Holdings, Inc.

Navajo Pipeline GP, L.L.C.

Navajo Pipeline LP, L.L.C.

Navajo Pipeline Co., L.P.

Black Eagle, Inc.

Montana Refining Company, a Partnership

Navajo Refining GP, L.L.C. (successor of merger with Hollycorp Aviation, LLC)

Navajo Refining LP, L.L.C.

Navajo Refining Company, L.L.C. (successor of merger with Navajo Refining Company, L.P.)

Navajo Northern, Inc.

Montana Retail Corporation

Navajo Crude Oil Purchasing, Inc.

Navajo Western Asphalt Company

Lorefco, Inc.

Lea Refining Company

Woods Cross Refining Company, L.L.C.

Holly Refining & Marketing Company

Holly Utah Holdings, Inc.

Holly Petroleum, Inc.

Holly Refining Communications, Inc.

Holly Energy Partners — Operating, L.P.

HEP Logistics GP, L.L.C.

Holly Energy Partners, L.P.1

HEP Pipeline GP, L.L.C.

HEP Refining GP, L.L.C.

HEP Mountain Home, L.L.C.

HEP Refining, L.L.C.

HEP Pipeline, L.L.C.

HEP Woods Cross, L.L.C.

HEP Navajo Southern, L.P.

HEP Pipeline Assets, Limited Partnership

HEP Refining Assets, L.P.

Holly Logistic Services, L.L.C.

HEP Logistics Holdings, L.P.

Rio Grande Pipeline Company2






 




			
	1	 	Approximately 46% owned directly and indirectly by Holly Corporation and certain of its subsidiaries
	 
	2	 	70% owned by HEP Navajo Southern, L.P.




 









 










NK Asphalt Partners

Holly Payroll Services, Inc.

Holly UNEV Pipeline Company

UNEV Pipeline, LLC3

Holly Energy Finance Corp.

Lovington-Artesia, L.L.C.

Porcupine Ridge Pipeline, LLC

HEP Fin-Tex/Trust-River, L.P.

N148H Exchange, LLC

N560BC Exchange, LLC

N18HN Exchange, LLC

Holly Refining & Marketing Company — Woods Cross (formerly known as Holly Refining & Marketing Company)

Holly Western Asphalt Company

Roadrunner Pipeline, L.L.C.

Holly Trucking, L.L.C.

Holly Refining & Marketing — MidCon, L.L.C.




Part (b). Other Equity Investments.




1,000,000 shares of Connacher common stock.

SLC Pipeline LLC4






 




			
	3	 	75% owned by Holly UNEV Pipeline Company
	 
	4	 	25% owned by Holly Energy Partners — Operating, L.P.




 









 










SCHEDULE 6.16




UNRESTRICTED SUBSIDIARIES




Holly Logistic Services, L.L.C.

HEP Logistics Holdings, L.P.

Holly Energy Partners, L.P.5

HEP Logistics GP, L.L.C.

Holly Energy Partners — Operating, L.P.

HEP Pipeline GP, L.L.C.

HEP Navajo Southern, L.P.

HEP Pipeline Assets, Limited Partnership

HEP Pipeline, L.L.C.

HEP Mountain Home, L.L.C.

HEP Refining, L.L.C.

HEP Refining GP, L.L.C.

HEP Refining Assets, L.P.

HEP Woods Cross, L.L.C.

Rio Grande Pipeline Company6

UNEV Pipeline, LLC7

Holly Energy Finance Corp.

Porcupine Ridge Pipeline, LLC

HEP Fin-Tex/Trust-River, L.P.

N148H Exchange, LLC

N560BC Exchange, LLC

N18HN Exchange, LLC






 




			
	5	 	Approximately 46% owned directly and indirectly by Holly Corporation and certain of its subsidiaries
	 
	6	 	70% owned by HEP Navajo Southern, L.P.
	 
	7	 	75% owned by Holly UNEV Pipeline Company




 









 










SCHEDULE 7.01




 









 








EXISTING LIENS




Delaware 




Navajo Refining Company, L.L.C. in favor of IOS Capital





	•	 	File No. 42724708, filed 9/21/2004
	 
	•	 	Collateral: Leased equipment





Navajo Refining Company, L.L.C. in favor of IOS Capital





	•	 	File No. 53092484, filed 10/6/2005
	 
	•	 	Collateral: Leased equipment





Navajo Refining Company, L.L.C. in favor of IOS Capital





	•	 	File No. 53466258, filed 11/8/2005
	 
	•	 	Collateral: Leased equipment





Navajo Refining Company, L.L.C. in favor of IKON Financial SVCS





	•	 	File No. 2008 1270097, filed 4/11/2008, Amendment filed 11/11/08
	 
	•	 	Collateral: Leased equipment





Navajo Refining Company, L.L.C. in favor of Greatamerica Leasing Corporation





	•	 	File No. 2008 2537312, filed 7/23/2008
	 
	•	 	Collateral: Various Canon copiers, scanners, and fax machines





Navajo Refining Company, L.P. in favor of Tower Tech, Inc.





	•	 	File No. 52790781, filed 9/9/2005
	 
	•	 	Collateral: Specific equipment, including cooling towers and in-line panels





New Mexico 




Navajo Refining Company, L.P. in favor of Air Liquide Industrial US LP





	•	 	File No. 20060013945A, filed 7/17/2006
	 
	•	 	Collateral: Vessel Serial # 1158, Low Temp Manifold Serial # 000949, Control Unit Serial #28766,
Vaporizer F8937-1-4, EZ PAD Serial # 10x15x16





Texas 




Holly Corporation in favor of Redburn Tire Company





	•	 	File No. 05-0015400005, filed 5/13/2005
	 
	•	 	Collateral: All tires and other assets sold by Redburn Tire Company to Holly Corporation





Navajo Refining GP, L.L.C. in favor of County Clerk of Dallas County — State Tax Lien of $134,814.09





	•	 	File No. 20080339163, filed 10/22/2008




 









 











Utah 




Holly Refining & Marketing Company in favor of Revco Leasing Company





	•	 	File No. 267665200538, filed 4/15/2005
	 
	•	 	Collateral: Leased equipment





Holly Refining & Marketing Company in favor of Revco Leasing Company





	•	 	File No. 303047200699, filed 9/11/2006
	 
	•	 	Collateral: Leased equipment




 









 











SCHEDULE 7.02




INVESTMENTS




1,000,000 shares of Connacher common stock.




 









 





SCHEDULE 7.03




EXISTING INDEBTEDNESS




None.




 









 





SCHEDULE 7.05




PERMITTED DISPOSITIONS




Dispositions of any of the 1,000,000 shares of Connacher common stock referenced in Schedule 7.02.




 









 





SCHEDULE 7.08




TRANSACTIONS WITH AFFILIATES




     Option Agreement, dated January 31, 2008, by and among the Borrower, Holly UNEV Pipeline
Company, Navajo Pipeline Co., L.P., Holly Logistic Services, L.L.C., HEP Logistics Holdings, L.P.,
Holly Energy Partners, L.P., HEP Logistics GP, L.L.C. and Holly Energy Partners — Operating, L.P.



2008 Drop-Down Assets Transaction




     Purchase and Sale Agreement, dated February 25, 2008 between the Borrower, Navajo Pipeline
Co., L.P., Navajo Refining Company, L.L.C., Woods Cross Refining Company, L.L.C., Holly Energy
Partners, L.P., Holly Energy Partners — Operating, L.P., HEP Pipeline, L.L.C., and HEP Woods
Cross, L.L.C.



     Contribution Agreement dated effective as of February 29, 2008, by and among the Borrower,
Navajo Pipeline Co., L.P., Woods Cross Refining Company, L.L.C. and Navajo Refining Company,
L.L.C., as Transferor Parties, and Holly Energy Partners, L.P., Holly Energy Partners — Operating,
L.P., HEP Woods Cross, L.L.C. and HEP Pipeline, L.L.C., as Transferee Parties.



     Pipelines and Tankage Agreement, dated February 29, 2008, between the Borrower, Navajo
Pipeline Co., L.P., Navajo Refining Company, L.L.C., Woods Cross Refining Company, L.L.C., Holly
Energy Partners, L.P., Holly Energy Partners — Operating, L.P., HEP Pipeline, L.L.C., and HEP
Woods Cross, L.L.C.



     Mortgage, Line of Credit Mortgage and Deed of Trust, dated February 29, 2008, by HEP Pipeline,
L.L.C. for the benefit of the Borrower (grants the Borrower a second priority lien on certain
assets owned by HEP Pipeline, L.L.C. in Eddy County, New Mexico).



     Mortgage, Line of Credit Mortgage and Deed of Trust, dated February 29, 2008, by HEP Pipeline,
L.L.C. for the benefit of the Borrower (grants the Borrower a second priority lien on certain
assets owned by HEP Pipeline, L.L.C. in Chaves County, New Mexico).



     Mortgage, Line of Credit Mortgage and Deed of Trust, dated February 29, 2008, by HEP Pipeline,
L.L.C. for the benefit of the Borrower (grants the Borrower a second priority lien on certain
assets owned by HEP Pipeline, L.L.C. in Lea County, New Mexico).



     Mortgage and Deed of Trust, dated February 29, 2008, by HEP Pipeline, L.L.C. for the benefit
of the Borrower (grants the Borrower a second priority lien on certain assets owned by HEP
Pipeline, L.L.C. in Gaines County, Texas).



     Mortgage and Deed of Trust, dated February 29, 2008, by HEP Pipeline, L.L.C. for the benefit
of the Borrower (grants the Borrower a second priority lien on certain assets owned by HEP
Pipeline, L.L.C. in Yoakum County, Texas).



 









 





     Fee and Leasehold Deed of Trust, dated February 29, 2008, by HEP Woods Cross, L.L.C. for the
benefit of the Borrower (grants the Borrower a second priority lien on certain assets owned by HEP
Woods Cross, L.L.C. in Davis County, Utah).



     Lease and Access Agreement, dated February 29, 2008, between Woods Cross Refining Company,
L.L.C. and HEP Woods Cross, L.L.C. (grants HEP Woods Cross, L.L.C. a lease of certain land and
access to certain facilities and other improvements located at the Woods Cross refinery).



     Lease and Access Agreement, dated February 29, 2008, between Navajo Refining Company, L.L.C.
and HEP Pipeline, L.L.C. (grants HEP Pipeline, L.L.C. a lease of certain land and access to certain
facilities and other improvements located at the Lovington refinery).



     Lease and Access Agreement, dated February 29, 2008, between Navajo Refining Company, L.L.C.
and HEP Pipeline, L.L.C. (grants HEP Pipeline, L.L.C. a lease of certain land and access to certain
facilities and other improvements located at the Artesia refinery).



     Site Services Agreement, dated February 29, 2008, between Woods Cross Refining Company, L.L.C.
and HEP Woods Cross, L.L.C. (relating to the Woods Cross refinery).



     Site Services Agreement, dated February 29, 2008, between Navajo Refining Company, L.L.C. and
HEP Pipeline, L.L.C. (relating to the Lovington refinery).



     Site Services Agreement, dated February 29, 2008, between Navajo Refining Company, L.L.C. and
HEP Pipeline, L.L.C. (relating to the Artesia refinery).



     Indemnification Agreement, dated February 29, 2008, by Navajo Pipeline Co., L.P. for the
benefit of HEP Logistics Holdings, L.P. (Navajo Pipeline Co., L.P. agrees to indemnify HEP
Logistics Holdings, L.P. in connection with the drop-down assets transaction).



     Indemnification Agreement, dated February 29, 2008, by Navajo Refining Company, L.L.C. for the
benefit of HEP Logistics Holdings, L.P. (Navajo Refining Company, L.L.C. agrees to indemnify HEP
Logistics Holdings, L.P. in connection with the drop-down assets transaction).



     Indemnification Agreement, dated February 29, 2008, by Woods Cross Refining Company, L.L.C.
for the benefit of HEP Logistics Holdings, L.P. (Woods Cross Refining Company, L.L.C. agrees to
indemnify HEP Logistics Holdings, L.P. in connection with the drop-down assets transaction).



2005 Intermediate Pipelines Transaction




     Purchase and Sale Agreement, dated July 6, 2005, by and among the Borrower, Navajo Pipeline
Co., L.P., Navajo Refining Company, L.P., Holly Energy Partners, L.P., Holly Energy Partners —
Operating, L.P. and HEP Pipeline, L.L.C.



 









 





     Contribution Agreement, dated July 8, 2005, between the Borrower, Navajo Pipeline Co., L.P.,
Navajo Refining Company, L.P., Holly Energy Partners, L.P., Holly Energy Partners — Operating,
L.P. and HEP Pipeline, L.L.C.



     Pipelines Agreement, dated July 8, 2005, among Holly Energy Partners, L.P., Holly Energy
Partners — Operating, L.P., the Borrower, HEP Pipeline, L.L.C., Navajo Refining Company, L.P., HEP
Logistics Holdings, L.P., Holly Logistic Services, L.L.C. and HEP Logistics GP, L.L.C.



     Mortgage and Deed of Trust, dated July 8, 2005, by HEP Pipeline, L.L.C. for the benefit of the
Borrower (grants the Borrower a second priority lien on certain assets owned by HEP Pipeline,
L.L.C. in Eddy County, New Mexico).



     Mortgage and Deed of Trust, dated July 8, 2005, by HEP Pipeline, L.L.C. for the benefit of the
Borrower (grants the Borrower a second priority lien on certain assets owned by HEP Pipeline,
L.L.C. in Lea County, New Mexico).



     Indemnification Agreement, dated July 8, 2005, by Navajo Pipeline Co., L.P. for the benefit of
HEP Logistics Holdings, L.P.



2004 Holly Energy Partners, L.P. Initial Public Offering




     Contribution, Conveyance and Assumption Agreement, dated as of July 13, 2004, by and among the
Borrower, HEP Operating Company, L.P., Holly Energy Partners, L.P., HEP Logistics GP, L.L.C., Holly
Logistic Services, L.L.C., HEP Logistics Holdings, L.P., Navajo Pipeline Co., L.P., HEP Mountain
Home, L.L.C., Navajo Refining Company, L.P., Lorefco, Inc., HEP Refining, L.L.C., HEP Refining GP,
L.L.C., HEP Refining Assets, L.P., HEP Pipeline, L.L.C., HEP Pipeline GP, L.L.C., HEP Pipeline
Assets, Limited Partnership, Woods Cross Refining Company, L.L.C., HEP Woods Cross, L.L.C., and HEP
Navajo Southern, L.P.



     Pipelines and Terminals Agreement, dated July 13, 2004, by and among the Borrower, Navajo
Refining Company, L.P., Holly Refining and Marketing Company, Holly Energy Partners, L.P., HEP
Operating Company, L.P., HEP Logistics Holdings, L.P., Holly Logistic Services, L.L.C., and HEP
Logistics GP, L.L.C.



     First Amendment to Pipelines and Terminals Agreement, dated December 1, 2005, by and among the
Borrower, Navajo Refining Company, L.P., Holly Refining and Marketing Company, Holly Energy
Partners, L.P., HEP Operating Company, L.P., HEP Logistics Holdings, L.P., Holly Logistic Services,
L.L.C., and HEP Logistics GP, L.L.C.



     Second Amendment to Pipelines and Terminals Agreement, dated April 1, 2006, by and among the
Borrower, Navajo Refining Company, L.P., Holly Refining and Marketing Company, Holly Energy
Partners, L.P., HEP Operating Company, L.P., HEP Logistics Holdings, L.P., Holly Logistic Services,
L.L.C., and HEP Logistics GP, L.L.C.



     Third Amendment to Pipelines and Terminals Agreement, dated April 1, 2006, by and among the
Borrower, Navajo Refining Company, L.P., Holly Refining and Marketing Company,



 









 







Holly Energy Partners, L.P., HEP Operating Company, L.P., HEP Logistics Holdings, L.P., Holly
Logistic Services, L.L.C., and HEP Logistics GP, L.L.C.



     Fourth Amendment to Pipelines and Terminals Agreement, dated April 1, 2006, by and among the
Borrower, Navajo Refining Company, L.P., Holly Refining and Marketing Company, Holly Energy
Partners, L.P., HEP Operating Company, L.P., HEP Logistics Holdings, L.P., Holly Logistic Services,
L.L.C., and HEP Logistics GP, L.L.C.



     Fifth Amendment to Pipelines and Terminals Agreement, dated October 15, 2007, by and among the
Borrower, Navajo Refining Company, L.P., Holly Refining and Marketing Company, Holly Energy
Partners, L.P., Holly Energy Partners — Operating, L.P., HEP Logistics Holdings, L.P., Holly
Logistic Services, L.L.C., and HEP Logistics GP, L.L.C.



     Sixth Amendment to Pipelines and Terminals Agreement, dated October 1, 2007, by and among the
Borrower, Navajo Refining Company, L.L.C., Holly Refining and Marketing Company, Holly Energy
Partners, L.P., Holly Energy Partners — Operating, L.P., HEP Logistics Holdings, L.P., Holly
Logistic Services, L.L.C., and HEP Logistics GP, L.L.C.



     Seventh Amendment to Pipelines and Terminals Agreement, dated April 1, 2008, by and among the
Borrower, Navajo Refining Company, L.L.C., Holly Refining and Marketing Company, Holly Energy
Partners, L.P., Holly Energy Partners — Operating, L.P., HEP Logistics Holdings, L.P., Holly
Logistic Services, L.L.C., and HEP Logistics GP, L.L.C.



     Omnibus Agreement, effective as of July 13, 2004, as amended, among the Borrower, Navajo
Pipeline Co., L.P., Holly Logistic Services, L.L.C., HEP Logistics Holdings, L.P., Holly Energy
Partners, L.P., HEP Logistics GP, L.L.C. and HEP Operating Company, L.P. See the amendments to the
Omnibus Agreement contained in Section 10.11 of the Purchase and Sale Agreement, dated July 6, 2005
by and among the Borrower, Navajo Pipeline Co., L.P., Navajo Refining Company, L.P., Holly Energy
Partners, L.P., Holly Energy Partners — Operating, L.P. and HEP Pipeline, L.L.C. and in Section
10.11 of the Purchase and Sale Agreement, dated February 25, 2008 between the Borrower, Navajo
Pipeline Co., L.P., Navajo Refining Company, L.L.C., Woods Cross Refining Company, L.L.C., Holly
Energy Partners, L.P., Holly Energy Partners — Operating, L.P., HEP Pipeline, L.L.C., and HEP
Woods Cross, L.L.C.



 









 





SCHEDULE 10.02




ADMINISTRATIVE AGENT’S OFFICE,

CERTAIN ADDRESSES FOR NOTICES




BORROWER:




Holly Corporation

100 Crescent Court

Suite 1600

Dallas, Texas 75201-6927

Attention: Stephen D. Wise

Telephone: 214-871-3877

Facsimile: 214-237-3051

Electronic Mail: steve.wise@hollycorp.com

Website Address: www.hollycorp.com




ADMINISTRATIVE AGENT:




Administrative Agent’s Office

(for payments and Requests for Credit Extensions):




Bank of America, N.A.

901 Main Street

Mail Code: TX1-492-14-05

Dallas, TX 75202

Attention: Melissa Lopez

Telephone: 214-209-2031

Facsimile: 214-290-9485

Electronic Mail: melissa.lopez@bankofamerica.com

Ref: Holly Corporation

ABA# 026009593




Other Notices as Administrative Agent:




Bank of America, N.A.

Agency Management

901 Main Street

Mail Code: TX1-492-14-11

Dallas, Texas 75202

Attention: Renita Cummings

Telephone: 214-209-4130

Facsimile: 214-290-8371

Electronic Mail: renita.m.cummings@bankofamerica.com




 









 





L/C ISSUER:




Bank of America

Mail Code: CA9-705-07-05

1000 W. Temple St

Los Angeles, Ca 90012-1514

Phone: 1.213.580.8369

Fax: 1.213.457.8841

Attention: Sandra M. Leon

Vice President; Operations Consultant

Electronic Mail: sandra.leon@bankofamerica.com




with a copy to:




Bank of America, N.A.

700 Louisiana, 8th Floor

Mail Code: TX4-213-08-14

Houston, Texas 77002

Attention: Pam Rodgers

                 Assistant Vice President

Telephone: 713-247-7246

Facsimile: 713-247-7286

Email: pamela.rodgers@bankofamerica.com




SWING LINE LENDER:




Bank of America

Bank of America, N.A.

901 Main Street

Mail Code: TX1-492-14-05

Dallas, TX 75202

Attention: Melissa Lopez

Telephone: 214-209- 2031

Facsimile: 214-290- 9485

Electronic Mail: melissa.lopez @bankofamerica.com

Ref: Holly Corporation

ABA# 026009593





 











 





EXHIBIT A




FORM OF LOAN NOTICE




Date: ___________, _____





			
	To:	 	Bank of America, N.A., as Administrative Agent





Ladies and Gentlemen:



Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of April
7, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement;” the terms defined therein being used herein as therein defined),
among Holly Corporation, a Delaware corporation (the “Borrower”), the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent and L/C Issuer.



The undersigned hereby requests (select one):





	 	o  	 	A Borrowing of Revolving Credit Loans
	 
	 	o  	 	A conversion or continuation of
Revolving Credit Loans
	 
	 	1.	 	On                                                             (a Business Day).
	 
	 	2.	 	In the amount of $                                        .
	 
	 	3.	 	Comprised of                                         .





[Type of Revolving Credit Loan requested]





	 	4.	 	For Eurodollar Rate Loans: with an Interest Period of            days/months.





     [The Borrowing requested herein complies with the proviso to the first sentence of Section
2.01 of the Agreement.]



	 	 	 	 	 
	 	HOLLY CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Form of Loan Notice




A-1









 








EXHIBIT B




FORM OF NOTE





     FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
                                         or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to the Borrower under that certain Second Amended and Restated Credit
Agreement, dated as of April 7, 2009 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the “Agreement;” the terms defined therein being
used herein as therein defined), among the Borrower, the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent and L/C Issuer.



     The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan (or if such Loan is outstanding under the Restated Credit Agreement (as defined
below), from the last day that interest was paid under such Restated Credit Agreement) until such
principal amount is paid in full, at such interest rates and at such times as provided in the
Agreement. All payments of principal and interest shall be made to the Administrative Agent for
the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s
Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear
interest, to be paid upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Guarantee and Collateral Agreement and
is secured by the Collateral. Upon the occurrence and continuation of one or more of the Events of
Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or
may be declared to be, immediately due and payable all as provided in the Agreement. Loans made by
the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in
the ordinary course of business. The Lender may also attach schedules to this Note and endorse
thereon the date, amount and maturity of its Loans and payments with respect thereto.



     This Note is issued as a replacement to, and not in satisfaction of, any Notes issued for
obligations under that certain credit agreement among the Borrower, the First Restatement Lenders,
the Administrative Agent, PNC Bank, National Association and Guaranty Bank, as Co-Documentation
Agents and Union Bank of California, N.A., as Syndication Agent dated as of March 14, 2008 (as
amended prior to the Second Restatement Effective Date, the “Restated Credit Agreement”).



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



Form of Note




B-1









 








     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.



	 	 	 	 	 
	 	HOLLY CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	 	 	 	 	 	 	Principal or	 	Outstanding	 	 
	 	 	 	 	 	 	End of	 	Interest	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	Paid This	 	Balance	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	Date	 	This Date	 	Made By
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 






 









 








EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                ,





			
	To:	 	Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:



Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of April
7, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement;” the terms defined therein being used herein as therein defined),
among Holly Corporation, a Delaware corporation (the “Borrower”), the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent Swing Line Lender and L/C
Issuer.



The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                                                          
    of
the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the behalf of the Borrower, and that:




[Use following paragraph 1 for fiscal year-end financial statements]



1. Attached hereto as Schedule 1 are the year-end audited financial statements required by
Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as of the above
date, together with the report and opinion of an independent certified public accountant required
by such section.




[Use following paragraph 1 for fiscal quarter-end financial statements]



1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the
above date. Such financial statements fairly present the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.



2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or
has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by the
attached financial statements.



3. A review of the activities of the Borrower during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and




[select one:]




Form of Compliance Certificate




C-1









 








     [to the best knowledge of the undersigned during such fiscal period, the Borrower performed
and observed each covenant and condition of the Loan Documents applicable to it.]



—or—




     [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]



     4. The representations and warranties of the Borrower contained in Article V of the
Agreement, and any representations and warranties of any Loan Party that are contained in any
document furnished at any time under or in connection with the Loan Documents, are true and correct
on and as of the date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Compliance Certificate, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01 of the Agreement, including the statements in connection with
which this Compliance Certificate is delivered.



     5. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of                     ,                     .



	 	 	 	 	 
	 	HOLLY CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



For the Quarter/Year ended __________________(“Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)





	I.	 	Section 7.11 (a) — Consolidated Interest Coverage Ratio.





	 	 	 	 	 	 	 
	 	A.	 	 	Consolidated EBITDA for four consecutive fiscal quarters ending
on above date (“Subject Period”):
	 	 	 	 	 
	 	 
	 	1.	 	 	Consolidated Net Income for Subject Period:

	 	$                    
	 	 	 	 	 
	 	 
	 	2.	 	 	Consolidated Interest Charges for Subject Period:

	 	$                    
	 	 	 	 	 
	 	 
	 	3.	 	 	Provision for income taxes for Subject Period:

	 	$                    
	 	 	 	 	 
	 	 
	 	4.	 	 	Depreciation and amortization expenses for Subject
Period:

	 	$                    
	 	 	 	 	 
	 	 
	 	5.	 	 	Non-recurring non-cash reductions of Consolidated
Net Income for Subject Period:

	 	$                    
	 	 	 	 	 
	 	 
	 	6.	 	 	Cash payments received in respect of non-cash items
increasing Consolidated Net Income and deducted in
a prior period:

	 	$                    
	 	 	 	 	 
	 	 
	 	7.	 	 	Cash distributions (not otherwise included)
received by the Loan Parties in respect of their
ownership interests in any Person (other than a
Restricted Subsidiary) for Subject Period

	 	$                    
	 	 	 	 	 
	 	 
	 	8.	 	 	Less: Non-cash additions to Consolidated Net
Income for Subject Period:

	 	$                    
	 	 	 	 	 
	 	 
	 	9.	 	 	Less: Cash payments made during Subject Period in
respect of non-recurring non-cash reductions of
Consolidated Net Income and added in a prior
period:

	 	$                    
	 	 	 	 	 
	 	 
	 	10.	 	 	Less: Following a Disposition under Section
7.05(i) or (j), cash distributions included during
Subject Period and in prior period in respect of
such disposed of interests
	 	 
	 	 	 	 	 
	 	 
	 	11.	 	 	Consolidated EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 +
6 + 7 - 8 - 9 - 10):

	 	$                    
	 	 	 	 	 
	 	 
	 	12.	 	 	Pro forma EBITDA from any Permitted Acquisitions:

	 	$                    






 









 






	 	 	 	 	 	 	 
	 	13.	 	 	Consolidated pro forma EBITDA (Lines I.A.11 + 12):

	 	$                    
	 	 	 	 	 
	 	 
	 	B.	 	 	Consolidated Interest Charges for Subject Period:
	 	 
	 	 	 	 	 
	 	 
	 	1.	 	 	Consolidated Interest Charges for Subject Period:

	 	$                    
	 	 	 	 	 
	 	 
	 	2.	 	 	Pro forma Interest Charges for Subject
Period8:

	 	$                    
	 	 	 	 	 
	 	 
	 	3.	 	 	Consolidated Pro forma Interest Charges
(Line I.B.1 + 2)

	 	$                    
	 	 	 	 	 
	 	 
	 	C.	 	 	Consolidated Interest Coverage Ratio (Line I.A.13
 ̧
Line I.B.3):

	 	             to 1
	 	 	 	 	 
	 	 
	 	 	 	 	Minimum required: 3.0 to 1
	 	 







	II.	 	Section 7.11(b) — Consolidated Leverage Ratio.





	 	 	 	 	 
	A.
	 	Consolidated Indebtedness at Statement Date:

	 	$                    
	 	 	 
	 	 
	B.
	 	Consolidated Pro forma EBITDA for Subject Period (Line
I.A.13 above):

	 	$                    
	 	 	 
	 	 
	C.
	 	Consolidated Leverage Ratio (Line II.A  ̧ Line II.B):

	 	             to 1
	 	 	 
	 	 
	 	 	Maximum permitted: 3.50 to 1
	 	 








 




			
	8	 	To the extent that Consolidated EBITDA included in the
calculation of the Consolidated Interest Coverage Ratio for any period shall
include pro forma amounts in connection with any Permitted Acquisition of any
Person during such period, the Consolidated Interest Charges shall also include
pro forma amounts with respect to the Consolidated Interest Charge of such
Person.






 











 





For the Quarter/Year ended __________________ (“Statement Date”)




SCHEDULE 3

to the Compliance Certificate

($ in 000’s)

Consolidated EBITDA

(in accordance with the definition of Consolidated EBITDA

as set forth in the Agreement)




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Twelve
	Consolidated	 	Quarter	 	Quarter	 	Quarter	 	Quarter	 	Months
	EBITDA	 	Ended	 	Ended	 	Ended	 	Ended	 	Ended
	Consolidated 

Net Income
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	+   Consolidated Interest Charges
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	+   Income taxes
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	+   Depreciation and
amortization
expenses
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	+   Non-recurring non-cash expenses for Subject Period
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	+   Cash payments received during Subject Period for prior period non-cash income
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	+   Cash
distributions (not
otherwise included)
received by the
Loan Parties in
respect of their
ownership interests
in any Person
(other than a
Restricted
Subsidiary) for
Subject Period
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	-   Non-cash income for Subject Period
	 	 	 	 	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Twelve
	Consolidated	 	Quarter	 	Quarter	 	Quarter	 	Quarter	 	Months
	EBITDA	 	Ended	 	Ended	 	Ended	 	Ended	 	Ended
	-   Cash payments made during Subject
Period for
non-recurring
non-cash expenses
in prior period
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	-   Following a
Disposition under
Section 7.05(i) or
(j), cash
distributions
included during
Subject Period and
in prior period in
respect of such
disposed of
interests
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	=   Consolidated EBITDA
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 





 









 






EXHIBIT D




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Second Amended and Restated
Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of which is
hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including, without limitation, the Letters of Credit and
the Guaranties included in such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i)
and (ii) above being referred to herein collectively as, the “Assigned Interest”). Such
sale and assignment is without recourse to the Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by the Assignor.




	1.	 	Assignor: ________________________
	 
	2.	 	Assignee: ________________________ [and is an Affiliate/Approved
Fund of [identify Lender]9]
	 
	3.	 	Borrower(s): ______________________
	 
	4.	 	Administrative Agent: ______________, as the administrative agent under the
Second Amended and Restated Credit Agreement







 




			
	9	 	Select as applicable.





Form of Assignment and Assumption





D-1









 









	5.	 	Credit Agreement: Second Amended and Restated Credit Agreement, dated as of April 7,
2009, among Holly Corporation, a Delaware corporation, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer
	 
	6.	 	Assigned Interest:







	 	 	 	 	 	 	 
	Aggregate 

Amount of

Commitment

for all Lenders*

	 	
Amount of 

Commitment/Loans 

Assigned*
	 	
Percentage 

Assigned of 

Commitment/Loans10
	 	


CUSIP Number
	 

	 	 
	 	 
	 	 
	$_______________
	 	$_______________
	 	_______________%	 	 
	$_______________
	 	$_______________
	 	_______________%	 	 
	$_______________
	 	$_______________
	 	_______________%	 	 







	[7.	 	Trade Date: _____________________]11




Effective Date: _______________, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	[Consented to and] Accepted:





[NAME OF ADMINISTRATIVE AGENT], as


Administrative Agent

 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 





 




			
	10	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.
	 
	11	 	To be completed if the Assignor and the Assignee intend
that the minimum assignment amount is to be determined as of the Trade Date.




 









 










	 	 	 	 	 
	[Consented to:]





[NAME OF L/C ISSUER], as

L/C Issuer

 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 	 	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	[Consented to:]





[NAME OF SWING LINE LENDER], as

Swing Line Lender

 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 	 	 	 



 









 






	 	 	 	 	 



ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




HOLLY CORPORATION

SECOND AMENDED AND RESTATED REVOLVING CREDIT FACILITY

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




          1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and
such other documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on
the basis of which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (v) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.




          2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but




 









 







excluding the Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.




          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.





 









 








EXHIBIT E




FORM OF GUARANTEE AND COLLATERAL AGREEMENT




[Separately Delivered]




Form of Guarantee and Collateral Agreement






E-1









 








EXHIBIT F




OPINION MATTERS



The matters contained in the following Sections of the Second Amended and Restated Credit
Agreement, among others, should be covered by the legal opinion:





	 	•	 	Section 5.01(a), (b) and (c)
	 
	 	•	 	Section 5.02
	 
	 	•	 	Section 5.03
	 
	 	•	 	Section 5.04
	 
	 	•	 	Section 5.06
	 
	 	•	 	Section 5.14(b)





Opinion Matters





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EXHIBIT G




FORM OF BORROWING BASE CERTIFICATE




Holly Corporation




			
	 	 	 
	BANK OF AMERICA, N.A.
	 	DATE:       [                    ]
	CONSOLIDATING CERTIFICATE	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	                       	 
	 	 	CASH
	 	 	 	 	 	 	 	 	 	 	 	 
	1	 	TOTAL PLEDGED CASH
	 	 	 	 	 	 	100%		 	 	          	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	2	 	TOTAL PLEDGED CASH AVAILABILITY
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	ACCOUNTS RECEIVABLE
	 	 	(000s)		 	 	 	 	 	 	 	 
	3	 	BEGINNING BALANCE LINE 8 LAST REPORT
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	4	 	PLUS SALES AS OF [     
                                     
        ]
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	5	 	LESS CREDITS AS OF [        
               
                       ]
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6	 	LESS GROSS COLLECTIONS AS OF [      
                              
              ]
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	7	 	ADJUSTMENTS
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	8	 	ENDING BALANCE
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	9	 	ACCOUNTS RECEIVABLE AGING BALANCE
	 	 	 	 	 	See Schedule A	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Commercial Product Receivables:
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Ineligible:
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Net Commercial Receivables:
	 	 	 	 	 	 	85%		 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	U.S. Government Receivables
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Ineligible:
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Net U.S. Government Receivables:
	 	 	 	 	 	 	95%		 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Approved Account Debtor Receivables
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Ineligible:
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Net Approved Account Debtor Receivables
	 	 	 	 	 	 	90%		 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	10	 	TOTAL ACCOUNTS RECEIVABLE AVAILABILITY
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	INVENTORY
	 	 	 	 	 	 	 	 	 	 	 	 
	11	 	TOTAL CRUDE & REFINED PRODUCTS INVENTORY
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	12	 	LESS: INELIGIBLE
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	13	 	ELIGIBLE
	 	 	 	 	 	 	80%		 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	PETROLEUM PRODUCTS IN TRANSIT TO BORROWER/GUARANTOR
	 	 	 	 	 	 	 	 	 	 	 	 
	14	 	SUPPORTED BY L/Cs ISSUED BY BORROWER/GUARANTOR BANKS
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	15	 	LESS: INELIGIBLE
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	16	 	ELIGIBLE
	 	 	 	 	 	 	80%		 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	BASKET FOR INVENTORY AT THIRD PARTY LOCATIONS
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	17	 	TOTAL INVENTORY AVAILABILITY
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	18	 	TOTAL INV. AVAILABILITY NOT TO EXCEED 65% OF BORROWING BASE:
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	19	 	TOTAL A/R AND INVENTORY AVAILABILITY
	 	 	 	 	 	 	 	 	 	 	 	 
	20	 	LESS: NET ACCOUNTS PAYABLE RELATED TO ELIGIBLE RECEIVABLES
OF AN ACCOUNT DEBTOR
	 	 	 	 	 	 	 	 	 	 	 	 
	21	 	AVAILABILITY AFTER ADJUSTMENTS FOR ACCOUNTS PAYABLE
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	22	 	TOTAL AVAILABILITY (NOT TO EXCEED $500MM)
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	LOAN ACTIVITY
	 	 	 	 	 	 	 	 	 	 	 	 
	23	 	BALANCE AS SHOWN ON LAST REPORT (LINE 27)
	 	 	 	 	 	 	 	 	 	 	 	 
	24	 	LESS: REPAYMENTS
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	25	 	PLUS: ADVANCE REQUESTS AS OF     
                    
          
                
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	26	 	OTHER         
                    
                     
                      
           

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	27	 	OUTSTANDING LOAN BALANCE
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	REVOLVING LOAN AVAILABILITY
	 	 	 	 	 	 	 	 	 	 	 	 
	28	 	CALCULATED AVAILABILITY (LINE 22)
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	29	 	LESS: OUTSTANDING LOAN BALANCE (LINE 27)
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	30	 	LESS: LETTERS OF CREDIT
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	31	 	LESS: OTHER RESERVES
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	32	 	NET AVAILABLE
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 





Borrowing Base Certificate




G-1









 







THE UNDERSIGNED HEREBY CERTIFIES, AS OF THE DATE FIRST WRITTEN ABOVE, THAT (A) THE INFORMATION SET
FORTH ABOVE IS TRUE AND COMPLETE AND (B) NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED OR IS
CONTINUING. THE UNDERSIGNED GRANTS A SECURITY INTEREST IN THE COLLATERAL REFLECTED ABOVE TO BANK
OF AMERICA, N.A. AND REPRESENTS AND WARRANTS THAT SAID COLLATERAL COMPLIES WITH THE
REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN THE LOAN AND SECURITY AGREEMENT BETWEEN BANK
OF AMERICA, N.A. AND THE UNDERSIGNED.




	 	 	 	 	 	 	 	 	 	 	 
	BORROWER: Holly Corporation	 	 	 	BANK OF AMERICA, N.A.	 	 
	AUTHORIZED SIGNATURE:

	 	 	 	 	 	RECEIVED BY:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	TITLE: Vice President and Treasurer	 	 	 	 	 	 	 	 







 









 








EXHIBIT H




FORM OF FIRST AMENDMENT TO GUARANTEE AND COLLATERAL

AGREEMENT AND REAFFIRMATION AND ASSUMPTION AGREEMENT




[Separately Delivered]




Reaffirmation And Assumption Agreement




H-1









 








EXHIBIT I




FORM OF SWING LINE NOTICE




Date: ___________, _____





			
	To:	 	Bank of America, N.A., as Swing Line Lender

Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of
April 7, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among Holly Corporation, a Delaware corporation (the “Borrower”), the Lenders
from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.



     The undersigned hereby requests a Swing Line Loan:




	 	1.	 	On                                                              (a Business Day).
	 
	 	2.	 	In the amount of $                                        .





     The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.04(a) of the Agreement.



	 	 	 	 	 
	 	HOLLY CORPORATION

 	 
	 	By:  	 	 
	 	 	Bruce R. Shaw 	 
	 	 	Senior Vice President and Chief Financial
Officer 	 
	 



Swing Line Loan Notice





I-1