Exhibit
10.1

    
       

      EXECUTION COPY

      


      THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT

      


      THIS THIRD AMENDMENT TO TERM LOAN
CREDIT AGREEMENT (this “Amendment”) is made
and entered into as of November 24, 2009, by and among WESTERN REFINING, INC., a Delaware
corporation (the “Borrower”), EACH LENDER SIGNATORY HERETO,
and BANK OF AMERICA,
N.A., as the administrative agent for the Lenders (in such capacity, the “Administrative
Agent”), Swing Line Lender, L/C Issuer and a Lender.

      


      W I T N E S S E T
H:

      


      WHEREAS, the Administrative
Agent, the lenders from time to time party thereto (collectively, the “Lenders” and
individually, each, a “Lender”) and the
Borrower are parties to that certain Term Loan Credit Agreement dated as of May
31, 2007, as amended by that certain First Amendment to Term Loan Credit
Agreement dated as of June 30, 2008, and that certain Second Amendment to Term
Loan Credit Agreement dated as of May 29, 2009 (the “Credit Agreement”;
capitalized terms used herein but not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement);

      


      WHEREAS, the Borrower has
requested that certain terms of the Credit Agreement be amended in the manner set forth
herein;

      


      WHEREAS, the Administrative
Agent and the Required Lenders, subject to the terms and conditions contained
herein, have agreed to such amendments, to be effective as of the Third
Amendment Effective Date (as defined below); and

      


      WHEREAS, the Borrower, the
Administrative Agent and the Required Lenders acknowledge that the terms of this
Amendment constitute an amendment and modification of, and not a novation of,
the Credit Agreement.

      


      NOW, THEREFORE, in
consideration of the mutual covenants and the fulfillment of the conditions set forth
herein, the parties hereby agree as follows:

      


      1. Definitions. From and
after the Third Amendment Effective Date, the term “Credit Agreement” or
“Agreement” (as the case may be), as used herein, in the Credit Agreement and in
the other Loan Documents, shall mean the Credit Agreement as hereby amended and
modified, and as further amended, restated, modified, replaced or supplemented
from time to time as permitted thereby.

      


      2. Amendments to the Credit
Agreement. Subject to the terms hereof and upon satisfaction of the
conditions set forth in Section 5 hereof,
effective as of the Third Amendment Effective Date (defined below), the Credit
Agreement is hereby amended as follows:

      


      (a) The
definition of “Applicable Rate” set
forth in Section
1.01 of the Credit Agreement (Defined Terms) is amended in its entirety
to read as follows:

      


      “‘Applicable Rate’
means (a) with respect to Eurodollar Rate Loans, 7.50%, and (b) with respect to
Base Rate Loans, 6.50%.”

      


      (b) The
definition of “Base
Rate” set forth in Section 1.01 of the
Credit Agreement (Defined Terms) is amended in its entirety to read as
follows:

      


      ‘“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 rate of interest in effect for such day as publicly announced
from time to time by Bank of America

      


      THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT

      


      Page 1

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      as its “prime rate,” (c) the
‘BBA LIBOR’ for
a 30-day interest period (as determined on such day) plus 1%, and (d)
4.25%. 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 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. The
‘BBA LIBOR’ has
the meaning given such term in the definition of ‘Eurodollar
Rate’.”

      


      (c) The
first paragraph of the definition of “Consolidated EBITDA”
set forth in Section
1.01 of the Credit Agreement (Defined Terms) is amended by adding new
clauses (a)(iv) and (a)(v), and
new clause (b), so that this definition now reads in its entirety as
follows:

      


      “‘Consolidated EBITDA’
means, for any period of one or more fiscal quarters, for the Borrower and its
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 (without duplication): (i) Consolidated Interest
Charges for such period, (ii) the provision for Federal, state, local and
foreign income taxes payable by the Borrower and its Subsidiaries for such
period, (iii) depreciation and amortization expenses, (iv) non-cash compensation
expenses and charges, (v) charges for the shutdown of the Bloomfield Refinery
not paid in cash during such period (collectively, the “Bloomfield
Expenses”), (vi) maintenance turnaround expenses incurred by the Borrower
and its Subsidiaries during such period in an aggregate amount not to exceed
$25,000,000, and (vii) other non-recurring expenses of the Borrower and its
Subsidiaries reducing such Consolidated Net Income which do not represent a cash
item in such period or any future period, and minus (b) the following: (i) cash
payments with respect to Bloomfield Expenses on account of charges taken in a
prior period, and (ii) non-cash items increasing Consolidated Net Income for
such period.”


      


      (d) The
definition of “Consolidated Interest
Charges” set forth in Section 1.01 of the
Credit Agreement (Defined Terms) is hereby amended by revising clause (d) thereof to
read as follows:

       

      “(d) cash
dividends to holders of preferred stock (including Convertible Preferred
Securities).”

      


      (e) The
proviso in the definition of “Consolidated Interest
Coverage Ratio” set forth in Section 1.01 of the
Credit Agreement (Defined Terms) is hereby amended in its entirety to read as
follows:

      


      “provided, however,
that for the fiscal quarter ending June 30, 2010, the ratio shall be calculated
for the period of two consecutive fiscal quarters ending on such date, and for
the fiscal quarter ending September 30, 2010, the ratio shall be calculated for
the period of three consecutive fiscal quarters ending on such
date.”

       

      (f) The
following definition of “Convertible Preferred
Securities” is hereby added alphabetically to Section 1.01 of the
Credit Agreement (Defined Terms):

      


      THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT

      


      Page 2

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      “‘Convertible Preferred
Securities’ means preferred
stock issued by the Borrower that is convertible into shares of common stock of
the Borrower.”

      


      (g) Clause (g) of the
definition of “Indebtedness” in
Section 1.01 of
the Credit Agreement (Defined Terms) is hereby amended by adding the following
prior to “and” at the end thereof:

       

      “provided, however,
that neither Convertible Preferred Securities nor obligations to make dividend
payments in respect of Convertible Preferred Securities shall be deemed
Indebtedness;”.

      


      (h) The
definition of “Restricted Payment”
set forth in Section
1.01 of the Credit Agreement (Defined Terms) is hereby amended by adding
the following to the end thereof:

      


      “In
addition, payment of dividends on Convertible Preferred Securities, and payments
made in cash (in lieu of fractional shares) upon the conversion of Convertible
Preferred Securities, shall not constitute Restricted Payments.”

      


      (i) Section 7.11 of the
Credit Agreement (Financial Covenants) is hereby amended in its entirety to read
as set forth below.

      


      “(a)
Permit the Consolidated Interest Coverage Ratio as of the end of each fiscal
quarter set forth below for which a ratio is set forth opposite such fiscal
quarter to be less than the ratio set forth opposite such fiscal
quarter:

      


      
        	
                Fiscal
      Quarter Ending

              	
                Minimum
      Consolidated Interest

                
                  Coverage
      Ratio

                

              
	
                December
      31, 2009

              	
                1.25
      to 1.00

              
	
                March
      31, 2010

              	
                Not
      Tested

              
	
                June
      30, 2010

              	
                1.00
      to 1.00

              
	
                September
      30, 2010

              	
                1.25
      to 1.00

              
	
                December
      31, 2010

              	
                1.50
      to 1.00

              
	
                March
      31, 2011

              	
                1.50
      to 1.00

              
	
                June
      30, 2011 and each fiscal

              	
                2.00
      to 1.00

              
	
                quarter
      thereafter

              	 
      


      

      


      (b)
Permit the Consolidated Leverage Ratio as of the end of each fiscal quarter set
forth below for which a ratio is set forth opposite such fiscal quarter to be
greater than the ratio set forth opposite such fiscal quarter:

      


      
        	
                Fiscal
      Quarter Ending

              	
                Maximum
      Consolidated Leverage

                Ratio

              
	
                December
      31, 2009

              	
                6.75
      to 1.00

              
	
                March
      31, 2010

              	
                Not
      Tested

              
	
                June
      30, 2010

              	
                Not
      Tested

              
	
                September
      30, 2010

              	
                Not
      Tested

              
	
                December
      31, 2010

              	
                5.25
      to 1.00

              
	
                March
      31, 2011

              	
                5.25
      to 1.00

              
	
                June
      30, 2011 and each fiscal quarter

                
                  thereafter

                

              	
                4.50
      to 1.00

              


      

      


      THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT

      


      Page 3

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      (c)
Permit Consolidated EBITDA to be less than (i) $5,000,000 for the period of
three months ending March 31, 2010, (ii) $80,000,000 for the period of six
months ending June 30, 2010, and (iii) $140,000,000 for the period of nine
months ending September 30, 2010.”

      


      (j) Exhibit C to the
Credit Agreement (Compliance Certificate) is hereby amended by replacing
Schedule 1 with
the schedule set forth on Schedule 1 attached
to this Amendment and Schedule 2 with the
schedule set forth on Schedule 2 to this
Amendment. All references to such schedules in the Credit Agreement, Exhibit C, and the
other Loan Documents shall mean such schedules as amended hereby.

      


      3. Full Force and Effect of
Agreement. Except as hereby specifically amended, modified or supplemented,
the Borrower hereby acknowledges and agrees that the Credit Agreement and all of
the other Loan Documents are hereby confirmed and ratified in all respects and
shall remain in full force and effect according to their respective terms. The
Borrower and each of the other Loan Parties hereby confirm and agree that all
Liens and other security interests now or hereafter held by the Administrative
Agent for the benefit of the Lenders as security for payment of the Obligations
are the legal, valid and binding obligations of the Borrower and the Loan
Parties, remain in full force and effect, and are unimpaired by this
Amendment.

       

      
        4.  Representations and
Warranties. The Borrower hereby certifies that:

      

      


      (a) prior to
and after giving effect to this Amendment, the representations and warranties of
the Borrower contained in Article V of the
Credit Agreement, or which are contained in any Loan Document or other document
furnished at any time under or in connection with the Credit Agreement, that are
qualified by materiality are true and correct on and as of the date hereof, and
each of the representations and warranties of the Borrower contained in Article V of the
Credit Agreement, or which are contained in any Loan Document or other document
furnished at any time under or in connection with the Credit Agreement, that are
not qualified by materiality are true and correct in all material respects on
and as of the date hereof, except, in each case, to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct, or true and correct in all material respects, as
the case may be, as of such earlier date;


      


      (b) the
Persons appearing as Guarantors on the signature pages to this Amendment
constitute all Persons who are required to be Guarantors pursuant to the terms
of the Credit Agreement and the other Loan Documents, including without
limitation all Persons who were required to become Guarantors after the Closing
Date, and each of such Persons has become and remains a party to a Guaranty as a
Guarantor;

      


      (c) this
Amendment has been duly authorized, executed and delivered by the Borrower and
each Guarantor party hereto and constitutes a legal, valid and binding
obligation of such parties, except as may be limited by general principles of
equity, by concepts of reasonableness or by the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors’ rights generally; and

      


      
        (d)  prior  to  and  after  giving  effect  to  this  Amendment,  no  Default  or  Event  of
Default
exists.

      

      


      THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT

      


      Page 4

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      5. Conditions
to Effectiveness. This Amendment shall be effective on the date (the
“Third Amendment
Effective Date”) upon which the following conditions precedent have been
satisfied:

      


      (a) the
Administrative Agent shall have received counterparts of this Amendment executed
by the Borrower, the Guarantors and the Required Lenders;

      


      (b) the
Administrative Agent shall have received a certificate of the Secretary or
Assistant Secretary of the Borrower, in form and substance reasonably
satisfactory to the Administrative Agent, certifying resolutions or other
evidence of authority adopted with respect to this Amendment and the
transactions contemplated hereby; and

      


      (c) Borrower
shall have paid (i) to Banc of America Securities LLC, as Arranger, (the “Arranger”), for its
own account, the fees and expenses then due and payable to the Arranger, (ii) to
the Administrative Agent, for the benefit of each Lender executing this
Amendment by 5:00 p.m. on November 23, 2009, a fee in the amount indicated by
notice from the Administrative Agent to the Lenders, and (iii) fees and expenses
required to be reimbursed or paid by the Borrower pursuant to the Loan
Documents, including the fees and expenses of counsel to the Administrative
Agent, in each case to the extent invoiced to the Borrower at least one Business
Day prior to the Third Amendment Effective Date.

      


      6. Waiver of Notice of
Prepayment. The Administrative Agent and Required Lenders hereby waive
the requirement in Section 2.03 of the
Credit Agreement that the Borrower provide the Administrative Agent with prior
notice of prepayment of the Loans upon the issuance of Section 7.03(m)
Indebtedness, whether such issuance occurs on or after the date
hereof.

      


      7. Third Amendment to Revolving
Credit Agreement. The Required Lenders hereby (a) consent to the
amendments to the Revolver Loan Documents effected by the Third Amendment to
Revolving Credit Agreement among the parties thereto dated November 24, 2009,
and (b) waive the provisions of Section 7.14 of the
Credit Agreement (Amendments to Revolver Loan Documents) to the extent necessary
to permit such amendments.

      


      8. Counterparts. This
Amendment 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. Delivery of an executed counterpart of this Amendment by telecopy or
in electronic form shall be effective as the delivery of a manually executed
counterpart.

      


      9. Governing Law. This
Amendment shall in all respects be governed by, and construed in accordance
with, the laws of the State of New York.

      


      10. Enforceability.
Should any one or more of the provisions of this Amendment be determined to
be illegal or unenforceable as to one or more of the parties hereto, all other
provisions nevertheless shall remain effective and binding on the parties
hereto.

      


      11. No Novation. This
Amendment is given as an amendment and modification of, and not as a payment of,
the Obligations of the Borrower and the other Loan Parties and is not intended
to constitute a novation of the Credit Agreement. Except as expressly modified
hereby, all of the indebtedness, liabilities and obligations owing by the
Borrower and each other Loan Party under the Credit Agreement and the other Loan
Documents shall continue.

      


      12. Successors and
Assigns. This Amendment shall be binding upon and inure to the
benefit of
each of the Borrower, the Lenders and the Administrative Agent and their
respective successors,

      


      THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT

      


      Page 5

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      assigns and legal representatives; provided, however, that the
Borrower, without the prior consent of the Administrative Agent and each Lender,
may not assign any rights, powers, duties or obligations
hereunder.

      


      


      [Remainder
of Page Intentionally Left Blank. Signature Pages Follow.]

      


      


       

      


      THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT

      


      Page 6

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

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

       

      
         

        
          	
                  BORROWER:

                	 
	 	 
	
                  WESTERN REFINING,
      INC.,

                  a
      Delaware corporation

                	 
	 	 
	 	 
	 	 	 	 
	By:	
                  /s/
      Scott D. Weaver

                	 
	Name:
      	
                  Scott
      D. Weaver

                	 
	Title:
      	
                  Vice
      President, Treasurer & Asst.
Sec.

                


        

      

      


       

      SIGNATURE
PAGE TO

      THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        
          
            
              	
                      
                        BANK OF
      AMERICA, N.A.,

                        as
      Administrative Agent

                      

                    	 
	 	 
	 	 
	 	 	 	 
	By:	
                      /s/
      Renita Cummings

                    	 
	Name:
      	
                      Renita
      Cummings

                    	 
	Title:
      	
                      Assistant
      Vice President

                    


            

             

             

          

        

      

      SIGNATURE
PAGE TO

      THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        
           

        

         

      

      REAFFIRMATION
OF GUARANTORS

      


      By
signing below, each Guarantor (a) acknowledges, consents and agrees to the
execution, delivery and performance by the Borrower of this Amendment, (b)
acknowledges and agrees that its obligations in respect of the Guaranty and
other Loan Documents to which it is a party are not released, diminished,
waived, modified, impaired or affected in any manner by this Amendment or any of
the provisions contemplated herein, (c) ratifies and confirms its obligations
under such Guaranty and other Loan Documents, and (d) acknowledges that prior to
and after giving effect to this Amendment, the representations and warranties of
such Guarantor in its Guaranty, or which are contained in any Loan Document or
other document to which it is a party furnished at any time under or in
connection with its Guaranty and the Credit Agreement, that are qualified by
materiality are true and correct on and as of the date hereof, and each of the
representations and warranties of such Guarantor in its Guaranty, or which are
contained in any Loan Document or other document to which it is a party
furnished at any time under or in connection with its Guaranty and the Credit
Agreement, that are not qualified by materiality are true and correct in all
material respects on and as of the date hereof, except, in each case, to the
extent that such representations and warranties specifically refer to an earlier
date, in which case they are true and correct, or true and correct in all
material respects, as the case may be, as of such earlier date.

       

      
         

        
          
            
              	
                      
                        
                          GUARANTORS:

                          


                          WESTERN REFINING COMPANY,
      L.P.,

                          a
      Delaware limited partnership

                        

                      

                    	 
	 	 
	 	
                      WESTERN REFINING GP,
      LLC,

                      a
      Delaware limited liability company,

                      its
      General Partner

                    
	 	 	 	 
	 	 	 	 
	 	By:	
                      
                        /s/
      Scott D. Weaver

                      

                    	 
	
                    	Name: 	
                      
                        Scott
      D. Weaver

                      

                    	 
	 	Title:
	
                      
                        
                          Vice
      President, Treasurer & Asst.
  Sec.

                        

                      

                    


            

             

             

          

        

      

      SIGNATURE
PAGE TO REAFFIRMATION OF GUARANTORS

      (THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT)

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        
          
            
              
                
                  	
                          
                            
                              
                                ASCARATE
      GROUP, LLC,

                                a
      Delaware limited liability company

                              

                            

                          

                        
	 	 
	By:	
                          WESTERN REFINING COMPANY,
      L.P.,

                          
                            a
      Delaware limited partnership, its sole Member

                          

                        
	 	 	 	 
	 	By:	
                          
                            WESTERN REFINING GP,
      LLC,
a Delaware limited liability company,

                          
                            its
      General Partner

                          

                        
	 	 	 	 
	 	By:	
                          
                            /s/
      Scott D. Weaver

                          

                        	 
	
                        	Name: 	
                          
                            Scott
      D. Weaver

                          

                        	 
	 	Title:
	
                          
                            
                              Vice
      President, Treasurer & Asst.
  Sec.

                            

                          

                        


                

                 

                
                   

                  
                    
                      
                        	
                                
                                  
                                    WESTERN REFINING GP,
      LLC,

                                    a
      Delaware limited liability company

                                  

                                

                              
	 	 
	By:	
                                
                                  /s/
      Scott D. Weaver

                                

                              	 
	Name:
      	
                                
                                  Scott
      D. Weaver

                                

                              	 
	Title:
      	
                                Vice
      President, Treasurer & Asst.
Sec.

                              


                      

                      
                      

                       

                      
                        
                           

                          
                            
                              
                                	
                                        
                                          
                                            
                                              WESTERN REFINING LP,
      LLC,

                                              a
      Delaware limited liability company

                                            

                                          

                                        

                                      
	 	 
	By:	
                                        
                                          /s/
      Joan L. Yori

                                        

                                      	 
	Name:
      	
                                        
                                          Joan
      L. Yori

                                        

                                      	 
	Title:
      	
                                        President

                                      


                              

                              
                              

                               

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

       

      SIGNATURE
PAGE TO REAFFIRMATION OF GUARANTORS

      (THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT)

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        
          
             

            
              
                
                  	
                          
                            
                              
                                
                                  CINIZA PRODUCTION
      COMPANY,

                                  a
      New Mexico corporation

                                  DIAL OIL CO., a New Mexico
      corporation

                                  EMPIRE OIL CO., a
      California corporation

                                  GIANT INDUSTRIES, INC., a Delaware
      corporation

                                  WESTERN REFINING SOUTHWEST,
      INC.,

                                  an
      Arizona corporation

                                  GIANT FOUR CORNERS,
      INC., an Arizona

                                  corporation

                                  WESTERN REFINING TERMINALS,
      INC.,

                                  an
      Arizona corporation

                                  WESTERN REFINING PIPELINE
      COMPANY,

                                  a
      New Mexico corporation

                                  GIANT STOP-N-GO OF NEW MEXICO,
      INC.,

                                  a
      New Mexico corporation

                                  WESTERN REFINING YORKTOWN
      HOLDING

                                  COMPANY, a Delaware
      corporation

                                  WESTERN REFINING YORKTOWN,
      INC.,

                                  a
      Delaware corporation

                                  WESTERN REFINING WHOLESALE,
      INC.,

                                  an
      Arizona corporation

                                  SAN JUAN REFINING
      COMPANY,

                                  a
      New Mexico corporation

                                

                              

                            

                          

                        
	 	 
	 	 
	By:	
                          
                            /s/
      Scott D. Weaver

                          

                        	 
	Name:
      	
                          
                            Scott
      D. Weaver

                          

                        	 
	Title:
      	
                          
                            Vice
      President, Treasurer & Asst.
Sec.

                          

                        


                

                
                

                
 

              

            

          

        

      

      SIGNATURE
PAGE TO REAFFIRMATION OF GUARANTORS

      (THIRD
AMENDMENT TO TERM LOAN CREDIT AGREEMENT)

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      SCHEDULE 1


      Schedule 1 to Compliance
Certificate

      


      For the
Quarter/Year ended __________ (“Statement
Date”)

      


      


      SCHEDULE 1

      to the
Compliance Certificate

      ($ in
000’s)

      


      
        	
                I.  

              	
                Section 7.11(a)
      – Consolidated
      Interest Coverage Ratio

              


      

      


      
        	
              	
                A.  

              	
                Consolidated
      EBITDA for [two/three/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
      expenses for Subject Period:

              	
                $

              	 
      	 
      
	 	 	 	 	 	 
	 
      	
                5.

              	
                Amortization
      expenses for Subject Period:

              	
                $

              	 
      	 
      
	 	 	 	 	 	 
	 
      	
                6.

              	
                Non-Cash
      compensation expenses for Subject Period:

              	
                $

              	 
      	 
      
	 	 	 	 	 	 
	 
      	
                7.

              	
                Non-Cash charges for Bloomfield Expenses for Subject

              	 
      
	 
      	 
      	
                Period:

              	
                $

              	 
      	 
      
	 	 	 	 	 	 
	 
      	
                8.

              	
                [Maintenance turnaround expenses
      for Subject Period]:1

              	
                $

              	 
      	 
      
	 	 	 	 	 	 
	 
      	
                9.

              	
                Non-recurring non-cash reductions of Consolidated
      Net

              	
                 

              	 
      
	 
      	 
      	
                Income
      for Subject Period:

              	
                $

              	 
      	 
      
	 	 	 	 	 	 
	 
      	
                10.

              	
                Cash
      Payments for Bloomfield Expenses for charges taken

              	 
      
	 
      	 
      	
                in
      prior period:

              	
                $

              	 
      	 
      
	 	 	 	 	 	 
	 
      	
                11.

              	
                Non-cash
      additions to Consolidated Net Income for Subject

              	 
      
	 
      	 
      	
                Period:

              	
                $

              	 
      	 
      
	 	 	 	 	 	 
	 
      	
                12.

              	
                Consolidated
      EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 6 + 7

              	 
      
	 
      	 
      	
                + 8
      + 9 – 10 – 11)

              	
                $

              	 
      	 
      
	 	 	 	 	 	 
	
                 

              	
                B.   
      Consolidated Interest Charges for Subject Period:

              	
                $

              	 
      	 
      
	 	 	 	 	 
	
                 

              	
                C.   
      Consolidated Interest Coverage Ratio

              	
                $

              	 
      	 
      
	 
      	
                (Line
      I.A.12 ÷ Line
      I.B):

              	 
      	 
      


      

      


      
        

      

      1       Such expenses in excess of $25,000,000
in any four fiscal quarter period are not included.

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      
        	 
      	
                Minimum
      required:

              	 
      	 
      
	 	 	 	 
	 
      	
                [Two/Three/Four]
      Fiscal Quarters Ending

              	
                Minimum

              	 
      
	 
      	 
      	 
      	
                Consolidated
      Interest

              	 
      
	 
      	 
      	 
      	
                Coverage
      Ratio

              	 
      
	 	 	 	 
	 
      	
                December
      31, 2009

              	
                1.25
      to 1.00

              	 
      
	 
      	
                March
      31, 2010

              	
                Not
      Tested

              	 
      
	 
      	
                June
      30, 2010

              	
                1.00
      to 1.00

              	 
      
	 
      	
                September
      30, 2010

              	
                1.25
      to 1.00

              	 
      
	 
      	
                December
      31, 2010

              	
                1.50
      to 1.00

              	 
      
	 
      	
                March
      31, 2011

              	
                1.50
      to 1.00

              	 
      
	 
      	
                June
      30, 2011 and each fiscal quarter

              	
                2.00
      to 1.00

              	 
      
	 
      	
                thereafter

              	 
      	 
      
	
                In
      compliance

              	
                [Yes/No]

              	 
      


      

       

      
        


        
          	
                  II.  

                	
                  
                    Section
      7.11(b) – Consolidated Leverage
  Ratio.

                  

                


        

        


        
          	
                	
                  A.  

                	
                  Consolidated
      Total Indebtedness at Statement
Date:

                


        

         

      

      
        	
              	
                B.  

              	
                Consolidated
      EBITDA for four consecutive fiscal quarters ending on above date (“Leverage Subject
      Period”):

              


      

      


      
        	 	
                1.

              	
                Consolidated
      Net Income for Leverage Subject Period:

              	
                $

              	 
      
	 	 	 	 	 
	 	
                2.

              	
                Consolidated
      Interest Charges for Leverage Subject Period:

              	
                $

              	 
      
	 	 	 	 	 
	 	
                3.

              	
                Provision
      for income taxes for Leverage Subject Period:

              	
                $

              	 
      
	 	 	 	 	 
	 	
                4.

              	
                Depreciation
      expenses for Leverage Subject Period:

              	
                $

              	 
      
	 	 	 	 	 
	 	
                5.

              	
                Amortization
      expenses for Leverage Subject Period:

              	
                $

              	 
      
	 	 	 	 	 
	 	
                6.

              	
                Non-Cash compensation expenses for Leverage Subject

              	
                $

              	 
      
	 	 
      	
                Period:

              	 
      	 
      
	 	 	 	 	 
	 	
                7.

              	
                Non-Cash charges for Bloomfield Expenses for Leverage

              	 
      	 
      
	 	 
      	
                Subject
      Period:

              	
                $

              	 
      
	 	 	 	 	 
	 	
                8.

              	
                [Maintenance turnaround expenses for Leverage Subject

              	
                 

              	 
      
	 	 
      	
                Period]:2

              	
                 
      $

              	  
      
	 	 	 	 	 
	 	
                9.

              	
                Non-recurring non-cash reductions of Consolidated Net

              	 
      	 
      
	 	 
      	
                Income
      for Leverage Subject Period:

              	
                $

              	 
      
	 	 	 	 	 
	 	
                10.

              	
                Cash
      Payments for Bloomfield Expenses for charges taken

              	 
      	 
      
	 	 
      	
                in
      prior period:

              	
                $

              	 
      


      

      


      
        
          

        

      

      2       Such expenses in excess of $25,000,000
in any four fiscal quarter period are not included.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

        
          


          
            	 	
                    11.

                  	
                    Non-cash additions to Consolidated Net Income for

                  	
                     

                  	 
      
	 	
                     

                  	
                    
                      Leverage
      Subject Period:

                    

                  	
                    $

                  	 
      
	 	 	 	 	 
	 	
                    12.

                  	
                    Consolidated
      EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 6 + 7

                  	
                     

                  	 
      
	 	
                     

                  	
                    + 8
      + 9 – 10 – 11)

                  	
                    $

                  	 
      
	 	 	 	 	 
	 	 	 	 	 
	
                    C. 
      

                  	Consolidated
      Leverage Ratio (Line II.A ÷
      Line II.B.12):	
                    $

                  	 


          

           

          
            
            

          

        

      

       

      
        	
                Maximum
      permitted:

              	 
      
	 	 
	 	 
	
                Fiscal Quarter
      Ending

              	
                Maximum
      Consolidated

                Leverage
      Ratio

              
	 	 
	
                December
      31, 2009

              	
                6.75
      to 1.00

              
	
                March
      31, 2010

              	
                Not
      Tested

              
	
                June
      30, 2010

              	
                Not
      Tested

              
	
                September
      30, 2010

              	
                Not
      Tested

              
	
                December
      31, 2010

              	
                5.25
      to 1.00

              
	
                March
      31, 2011

              	
                5.25
      to 1.00

              
	
                June
      30, 2011 and each fiscal quarter

              	
                4.50
      to 1.00

              
	
                thereafter

              	
                 
      

              
	 	 
	
                In
      compliance

              	
                [Yes/No]

              


      

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      SCHEDULE 2


      Schedule 2 to Compliance
Certificate

      


      SCHEDULE 2

      to the
Compliance Certificate

      ($ in
000’s)

      


      Consolidated
EBITDA


      
         
(in
accordance with the definition of Consolidated EBITDA

        as set
forth in the Agreement)

      

       

       

      
        
          	
                  Consolidated

                  EBITDA

                	
                  Quarter

                  Ended

                	
                  Quarter

                  Ended

                	
                  Quarter

                  Ended

                	
                  Quarter

                  Ended

                	
                  Twelve

                  Months

                  Ended

                
	
                  Consolidated

                  Net
      Income

                	 
      	 
      	 
      	 
      	 
      
	
                  + 
      Consolidated Interest Charges

                	 
      	 
      	 
      	 
      	 
      
	
                  +
       income taxes

                	 
      	 
      	 
      	 
      	 
      
	
                  + 
      depreciation expense

                	 
      	 
      	 
      	 
      	 
      
	
                  + 
      amortization expense

                	 
      	 
      	 
      	 
      	 
      
	
                  + 
      non-cash compensation expenses

                	 
      	 
      	 
      	 
      	 
      
	
                  + 
      non-cash Bloomfield Expenses

                	 
      	 
      	 
      	 
      	 
      
	
                  + 
      Maintenance turnaround expenses

                	 
      	 
      	 
      	 
      	 
      
	
                  + 
      non-recurring non-cash expenses

                	 
      	 
      	 
      	 
      	 
      
	
                  - 
      cash payments for Bloomfield Expenses for charges taken in prior
      period

                	 
      	 
      	 
      	 
      	 
      
	
                  - 
      non-cash income

                	 
      	 
      	 
      	 
      	 
      
	
                  =
      Consolidated EBITDA

                	 
      	 
      	 
      	 
      	 
      


        

      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      
        	
                Minimum required:

              	 
      
	 	 
	
                Three
      months ending March 31, 2010

              	
                $5,000

              
	
                Six
      months ending June 30, 2010

              	
                $80,000

              
	
                Nine
      months ending September 30, 2010

              	
                $140,000

              
	 	 
	
                In
      compliance

              	
                [Yes/No]