exv10w3









Exhibit 10.3



[EXECUTION COPY]





 





$400,000,000

LOAN AND SECURITY AGREEMENT




Dated as of July 3, 2008




By and Among




ALON REFINING KROTZ SPRINGS, INC.,

and

EACH OTHER PARTY JOINED AS A BORROWER HEREUNDER,

as Borrowers,




ALON REFINING LOUISIANA, INC.,

Holdings,



  
 

CERTAIN FINANCIAL INSTITUTIONS,

as Lenders




and




BANK OF AMERICA, N.A.,

as Agent




 





BANC OF AMERICA SECURITIES LLC,

as Lead Arranger and Book Manager




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1 DEFINITIONS; RULES OF CONSTRUCTION
	 	 	1	 
	1.1 Definitions
	 	 	1	 
	1.2 Accounting Terms
	 	 	34	 
	1.3 Uniform Commercial Code
	 	 	34	 
	1.4 Certain Matters of Construction
	 	 	34	 
	1.5 Effectuation of Transactions
	 	 	35	 
	1.6 Pro Forma Calculations
	 	 	38	 
	SECTION 2 CREDIT FACILITIES
	 	 	35	 
	2.1 Revolver Commitment
	 	 	35	 
	2.2 Increase in Revolving Credit Facility
	 	 	36	 
	2.3 Letter of Credit Facility
	 	 	37	 
	SECTION 3 INTEREST, FEES AND CHARGES
	 	 	39	 
	3.1 Interest
	 	 	39	 
	3.2 Fees
	 	 	41	 
	3.3 Computation of Interest, Fees, Yield Protection
	 	 	41	 
	3.4 Reimbursement Obligations
	 	 	41	 
	3.5 Illegality
	 	 	42	 
	3.6 Inability to Determine Rates
	 	 	42	 
	3.7 Increased Costs; Capital Adequacy
	 	 	42	 
	3.8 Mitigation
	 	 	43	 
	3.9 Funding Losses
	 	 	43	 
	3.10 Maximum Interest
	 	 	44	 
	SECTION 4 LOAN ADMINISTRATION
	 	 	44	 
	4.1 Manner of Borrowing and Funding Revolver Loans
	 	 	44	 
	4.2 Defaulting Lender
	 	 	46	 
	4.3 Number and Amount of LIBOR Loans; Determination of Rate
	 	 	46	 
	4.4 Borrower Agent
	 	 	46	 
	4.5 One Obligation
	 	 	46	 
	4.6 Effect of Termination
	 	 	46	 
	SECTION 5 PAYMENTS
	 	 	47	 
	5.1 General Payment Provisions
	 	 	47	 
	5.2 Repayment of Revolver Loans
	 	 	47	 
	5.3 Mandatory Prepayment of Revolving Loans
	 	 	47	 






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	 	 	Page	 
	5.4 Payment of Other Obligations
	 	 	47	 
	5.5 Marshaling; Payments Set Aside
	 	 	47	 
	5.6 Post-Default Allocation of Payments
	 	 	48	 
	5.7 Application of Payments
	 	 	48	 
	5.8 Loan Account; Account Stated
	 	 	49	 
	5.9 Taxes
	 	 	49	 
	5.10 Lender Tax Information
	 	 	49	 
	5.11 Nature and Extent of Each Borrower’s Liability
	 	 	50	 
	SECTION 6 CONDITIONS PRECEDENT
	 	 	53	 
	6.1 Conditions Precedent to Initial Loans
	 	 	53	 
	6.2 Conditions Precedent to All Credit Extensions
	 	 	56	 
	6.3 Limited Waiver of Conditions Precedent
	 	 	56	 
	SECTION 7 COLLATERAL
	 	 	56	 
	7.1 Grant of Security Interest
	 	 	56	 
	7.2 Lien on Deposit Accounts; Cash Collateral
	 	 	57	 
	7.3 Real Estate Collateral
	 	 	58	 
	7.4 Other Collateral
	 	 	62	 
	7.5 No Assumption of Liability
	 	 	63	 
	7.6 Further Assurances
	 	 	63	 
	7.7 Foreign Subsidiary Stock
	 	 	63	 
	SECTION 8 COLLATERAL ADMINISTRATION
	 	 	62	 
	8.1 Borrowing Base Certificates
	 	 	62	 
	8.2 Administration of Accounts
	 	 	62	 
	8.3 Administration of Inventory
	 	 	63	 
	8.4 Administration of Equipment
	 	 	64	 
	8.5 Administration of Deposit Accounts
	 	 	64	 
	8.6 General Provisions
	 	 	64	 
	8.7 Power of Attorney
	 	 	65	 
	SECTION 9 REPRESENTATIONS AND WARRANTIES
	 	 	66	 
	9.1 General Representations and Warranties
	 	 	66	 
	SECTION 10 COVENANTS AND CONTINUING AGREEMENTS
	 	 	73	 
	10.1 Affirmative Covenants
	 	 	73	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	10.2 Negative Covenants
	 	 	84	 
	SECTION 11 EVENTS OF DEFAULT; REMEDIES ON DEFAULT
	 	 	92	 
	11.1 Events of Default
	 	 	92	 
	11.2 Remedies upon Default
	 	 	94	 
	11.3 License
	 	 	94	 
	11.4 Setoff
	 	 	94	 
	11.5 Remedies Cumulative; No Waiver
	 	 	95	 
	SECTION 12 AGENT
	 	 	95	 
	12.1 Appointment, Authority and Duties of Agent
	 	 	95	 
	12.2 Agreements Regarding Collateral and Field Examination Reports
	 	 	96	 
	12.3 Reliance By Agent
	 	 	97	 
	12.4 Action Upon Default
	 	 	97	 
	12.5 Ratable Sharing
	 	 	97	 
	12.6 Indemnification of Agent Indemnitees
	 	 	97	 
	12.7 Limitation on Responsibilities of Agent
	 	 	98	 
	12.8 Successor Agent and Co-Agents
	 	 	98	 
	12.9 Due Diligence and Non-Reliance
	 	 	99	 
	12.10 Replacement of Certain Lenders
	 	 	99	 
	12.11 Remittance of Payments and Collections
	 	 	99	 
	12.12 Agent in its Individual Capacity
	 	 	100	 
	12.13 Agent Titles
	 	 	100	 
	12.14 No Third Party Beneficiaries
	 	 	100	 
	SECTION 13 BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS
	 	 	100	 
	13.1 Successors and Assigns
	 	 	100	 
	13.2 Participations
	 	 	100	 
	13.3 Assignments
	 	 	101	 
	SECTION 14 MISCELLANEOUS
	 	 	101	 
	14.1 Consents, Amendments and Waivers
	 	 	101	 
	14.2 Indemnity
	 	 	102	 
	14.3 Notices and Communications
	 	 	103	 
	14.4 Performance of Borrowers’ Obligations
	 	 	103	 
	14.5 Credit Inquiries
	 	 	104	 






iii 









 






	 	 	 	 	 
	 	 	Page	 
	14.6 Severability
	 	 	104	 
	14.7 Cumulative Effect; Conflict of Terms
	 	 	104	 
	14.8 Counterparts
	 	 	104	 
	14.9 Entire Agreement
	 	 	104	 
	14.10 Relationship with Lenders
	 	 	104	 
	14.11 No Advisory or Fiduciary Responsibility
	 	 	104	 
	14.12 Confidentiality
	 	 	105	 
	14.13 GOVERNING LAW
	 	 	105	 
	14.14 Consent to Forum; Arbitration
	 	 	105	 
	14.15 Waivers by Borrowers
	 	 	106	 
	14.16 Patriot Act Notice
	 	 	107	 
	14.17 Intercreditor Agreement
	 	 	107	 






LIST OF EXHIBITS AND SCHEDULES




	 	 	 
	Exhibit A

	 	Form of Revolver Note
	Exhibit B

	 	Form of Guarantee and Collateral Agreement
	Exhibit C

	 	Form of Assignment and Acceptance
	Exhibit D

	 	Form of Assignment Notice
	Exhibit E

	 	Form of Bank Product Notice
	Exhibit F

	 	Form of Intercreditor Agreement
	Exhibit G

	 	Form of Holdings Subordination Agreement
	Exhibit H

	 	Form of Compliance Certificate






	 	 	 
	Schedule 1.1

	 	Commitments of Lenders
	Schedule 1.2

	 	Marked-to-Market Basis
	Schedule 1.3

	 	Excluded Real Estate
	Schedule 7.4

	 	Pledged Collateral
	Schedule 8.5

	 	Deposit Accounts
	Schedule 8.6.1

	 	Business Locations
	Schedule 9.1.8

	 	Subsidiaries and Equity Related Agreements
	Schedule 9.1.10

	 	Material Contracts
	Schedule 9.1.17

	 	Environmental Matters
	Schedule 9.1.18

	 	Insurance
	Schedule 9.1.20

	 	Real Estate Matters
	Schedule 9.1.26

	 	Patents, Trademarks, Copyrights and Licenses
	Schedule 10.2.1

	 	Existing Indebtedness
	Schedule 10.2.2

	 	Existing Liens
	Schedule 10.2.4

	 	Existing Investments







iv 









 








LOAN AND SECURITY AGREEMENT




     THIS LOAN AND SECURITY AGREEMENT is dated as of July 3, 2008, among ALON REFINING KROTZ
SPRINGS, INC., a Delaware corporation (the “Company” or a “Borrower”), EACH OTHER
PARTY JOINED AS A BORROWER HEREUNDER FROM TIME TO TIME (each individually, a “Borrower” and,
collectively with the Company, the “Borrowers”), ALON REFINING LOUISIANA, INC., a Delaware
corporation (“Holdings”), the financial institutions party to this Agreement from time to
time as lenders (collectively, “Lenders”), and BANK OF AMERICA, N.A., a national banking
association, as administrative agent for the Lenders (“Agent”).



R E C I T A L S:




     WHEREAS, the Company has entered into the Stock Purchase Agreement (as defined in Section
1.1), pursuant to which it will acquire (the “Valero Acquisition”) from Valero Refining and
Marketing Company, a Delaware corporation (the “Seller”), all the issued and outstanding
Equity Interests of Valero Refining Company-Louisiana, a Delaware corporation (the “Acquired
Company”), which owns a refinery located in Krotz Springs, Louisiana (the “Krotz Springs
Refinery”) and assets related thereto, for aggregate consideration of $333,000,000 in cash,
subject to adjustment as set forth therein;



     WHEREAS, immediately following the consummation of the Valero Acquisition, the Company will
merge with and into the Acquired Company, with the Acquired Company being the surviving Person in
such merger and the name of the surviving Person shall be changed to “Alon Refining Krotz Springs,
Inc.” (collectively, the “Merger”);



     WHEREAS, in connection with the Valero Acquisition, the Company and Holdings will enter into a
Term Loan Agreement (as defined in Section 1.1), which shall provide, subject to the terms and
conditions thereof, for a term loan in the aggregate principal amount of $302,000,000 (the
“Term Loan Facility”);



     WHEREAS, the Borrowers have requested that Lenders provide a revolving credit facility to
Borrowers to finance the Valero Acquisition and their mutual and collective business enterprise.
Lenders are willing to provide the credit facility on the terms and conditions set forth in this
Agreement.



     NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:



SECTION 1 DEFINITIONS; RULES OF CONSTRUCTION




     1.1 Definitions. As used herein, the following terms have the meanings set forth below:



     ABL Priority Collateral: as defined in the Intercreditor Agreement; provided that, if
Discharge (as defined in the Intercreditor Agreement) of the Term Obligations (as defined in the
Intercreditor Agreement) shall have occurred, “ABL Priority Collateral” shall mean all Collateral.



     Account: as defined in the UCC, including all rights to payment for goods sold or
leased, or for services rendered.



     Account Debtor: a Person who is obligated under an Account, Chattel Paper or General
Intangible.



     Acquired Company: as defined in the Recitals hereto.



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     Acquisition: the acquisition of (i) a controlling equity interest in another Person
(including the purchase of an option, warrant or convertible or similar type security to acquire
such a controlling interest at the time it becomes exercisable by the holder thereof), whether by
purchase of such equity interest or upon exercise of an option or warrant for, or conversion of
securities into, such equity interest, or (ii) assets of another Person which constitute all or
substantially all of the assets of such Person or of a line or lines of business conducted by such
Person.



     Affiliate: 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.



     Agent Indemnitees: Agent and its officers, directors, employees, Affiliates, agents
and attorneys.



     Agent Professionals: attorneys, accountants, appraisers, auditors, business valuation
experts, environmental engineers or consultants, turnaround consultants, and other professionals
and experts retained by Agent.



     Allocable Amount: as defined in Section 5.11.4.



     Annual Compensation Incentive Amount: as defined in Section 10.2.8(a).



     Anti-Terrorism Laws: any laws relating to terrorism or money laundering, including the
Patriot Act.



     Applicable Law: all laws, rules, regulations and governmental guidelines applicable to
the Person, conduct, transaction, agreement or matter in question, including all applicable
statutory law, common law and equitable principles, and all provisions of constitutions, treaties,
statutes, rules, regulations, orders and decrees of Governmental Authorities.



     Applicable Margin: with respect to any Type of Loan or the Unused Line Fee, the margin
set forth below, as determined by the Fixed Charge Coverage Ratio for the last Four Quarter Period:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	LIBOR	 	Standby	 	Documentary	 	 
	 	 	 	 	Base Rate	 	Revolver	 	Letters of	 	Letters of	 	Unused
	Level	 	Ratio	 	Loans	 	Loans	 	Credit	 	Credit	 	Line Fee
	I
	 	Greater than 1.40 to 1.00

	 	 	0.25	%	 	 	1.75	%	 	 	1.75	%	 	 	1.25	%	 	 	0.250	%
	II
	 	Less than or equal to 1.40 to
1.00 but greater than 1.25 to
1.00

	 	 	0.50	%	 	 	2.00	%	 	 	2.00	%	 	 	1.50	%	 	 	0.250	%
	III
	 	Less than or equal to 1.25 to
1.00 but greater than 1.00 to
1.00

	 	 	0.75	%	 	 	2.25	%	 	 	2.25	%	 	 	1.75	%	 	 	0.375	%
	IV
	 	Less than or equal to 1.00 to 1.00

	 	 	1.00	%	 	 	2.50	%	 	 	2.50	%	 	 	2.00	%	 	 	0.500	%





Until the date of receipt by the Agent of the quarterly financial statements delivered for the
Fiscal Quarter ending March 31, 2009, the Applicable Margins shall be determined as if Level II
were applicable. Thereafter, the margins shall be subject to increase or decrease upon receipt by
Agent pursuant to Section 10.1.4 of the financial statements and corresponding Compliance
Certificate for the last Fiscal Quarter, which change shall be effective on the first day of the
calendar month following receipt. If, by the first day of a month, any financial statements and
Compliance Certificate due in the preceding month have not been received, then the margins shall be
determined as if Level IV were applicable, from such day until the first day of the calendar month
following actual receipt.




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     Approved Deposit Account: each Deposit Account (a) that is maintained within the
United States with a commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia having combined capital and surplus in excess of
$500,000,000 and otherwise acceptable to Agent, (b) as to which a Deposit Account Control Agreement
has been executed and delivered to Agent and (c) as to which the deposits therein are not subject
to any Lien, security interest or restriction upon withdrawal, other than Agent’s Liens and rights
of setoff, Liens or adjustment of the applicable depositary bank, and the Term Facility Liens.



     Approved Fund: any Person (other than a natural Person) that is engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in
its ordinary course of activities, and is administered or managed by a Lender, an entity that
administers or manages a Lender, or an Affiliate of either.



     Asset Disposition: as defined in Section 10.2.6.



     Assignment and Acceptance: an assignment agreement between a Lender and Eligible
Assignee, in the form of Exhibit C.



     Availability: the Borrowing Base minus the principal balance of all Revolver Loans.



     Availability Reserve: the sum (without duplication) of each of the following in such
amounts and with respect to such matters as the Agent in its credit judgment, reasonably exercised,
may elect to impose from time to time: (a) the Inventory Reserve; (b) the Rent and Charges Reserve;
(c) the LC Reserve; (d) the Bank Product Reserve; (e) all accrued Royalties, whether or not then
due and payable by a Borrower; (f) the Earnout Reserve, (g) the aggregate amount of liabilities
secured by Liens upon ABL Priority Collateral that are senior to Agent’s Liens (but imposition of
any such reserve shall not waive an Event of Default arising therefrom); (h) the First Purchaser
Lien Reserve; (i) reserves for customs charges and estimated excise fuel Taxes; and (j) such
additional reserves, in such amounts and with respect to such matters as the Agent in its credit
judgment, reasonably exercised, may elect to impose from time to time, in each case of the
foregoing clauses (a) through (j), without duplication of reserves taken or reductions made in
determining Eligible Petroleum Inventory, Eligible Petroleum Inventory in Transit, Eligible Cash
and Eligible Investments.



     Bank of America: Bank of America, N.A., a national banking association, and its
successors and assigns.



     Bank of America Indemnitees: Bank of America and its officers, directors, employees,
Affiliates, agents and attorneys.



     Bank Product: any of the following products, services or facilities extended to any
Borrower or Subsidiary by any Lender or any of its Affiliates: (a) Cash Management Services; (b)
products under Hedging Agreements; (c) commercial credit card and merchant card services; and (d)
leases and other banking products or services as may be requested by any Borrower or Subsidiary,
other than Letters of Credit.



     Bank Product Debt: all Indebtedness and other obligations of the Obligors arising
under or relating to Bank Products.



     Bank Product Reserve: the aggregate amount of reserves established by Agent from time
to time in its discretion in respect of Bank Product Debt.



     Bankruptcy Code: Title 11 of the United States Code.



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     Base Rate: the rate of interest announced by Bank of America from time to time as its
prime rate. Such rate is a rate set by Bank of America based upon various factors including its
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.



     Base Rate Loan: any Loan that bears interest based on the Base Rate.



     Board of Governors: the Board of Governors of the Federal Reserve System.



     Borrowed Money: with respect to any Obligor, without duplication, its (a) Indebtedness
that (i) arises from the lending of money by any Person to such Obligor, (ii) is evidenced by
notes, drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest
or is a type upon which interest charges are customarily paid (excluding trade payables owing in
the Ordinary Course of Business), or (iv) was issued or assumed as full or partial payment for
Property; (b) Capital Lease Obligations and Synthetic Lease Obligations; (c) reimbursement
obligations with respect to letters of credit; and (d) guaranties of any Indebtedness of the
foregoing types owing by another Person.



     Borrower Agent: as defined in Section 4.4.



     Borrowing: a group of Loans of one Type that are made on the same day or are converted
into Loans of one Type on the same day.



     Borrowing Base: on any date of determination, an amount equal to the lesser of:



          (a) the aggregate amount of Revolver Commitments, minus the LC Obligations; and




          (b) the difference of:





     (i) the sum of




     (A) (1) 90% of the Net Amount of Eligible Major Accounts and (2) 85%
of the Net Amount of Eligible Other Accounts; provided, that each such
percentage shall be reduced by .1% for each .1 percentage point that the
Dilution Percent exceeds 2.5%, plus




     (B) 85% of the sum of (1) Eligible Petroleum Inventory and (2) Eligible
Petroleum Inventory in Transit; plus




     (C) 100% of Eligible Cash, plus




     (D) 95% of Eligible Investments, plus




     (E) 100% of the amount available to be drawn by the Agent on the
Supporting Letter of Credit; plus




     (F) 100% of Paid but Unexpired Letters of Credit; minus




     (ii) the Availability Reserve;


provided, that no Accounts or Petroleum Product acquired in an Acquisition consummated by any
Obligor after the Closing Date shall be included in any calculation of the Borrowing Base until


-4-









 






completion of all field exams, appraisals, audits and other evaluation of Collateral in a manner
and with results acceptable to Agent.




     Borrowing Base Certificate: a certificate, in form and substance satisfactory to
Agent, by which Borrowers certify calculation of the Borrowing Base.



     Business Day: 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, California, New York or
North Carolina, and if such day relates to a LIBOR Loan, any such day on which dealings in Dollar
deposits are conducted between banks in the London interbank Eurodollar market.



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



     Capital Lease: any lease that is required to be capitalized for financial reporting
purposes in accordance with GAAP.



     Capital Lease Obligations: of any person shall mean the obligations of such person to
pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as Capital Leases on a balance sheet of such person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



     Cash Collateral: cash, and any interest or other income earned thereon, that is
delivered to Agent to Cash Collateralize any Obligations.



     Cash Collateral Account: a demand deposit, money market or other account established
with Agent, which account shall be subject to Agent’s Liens for the benefit of Secured Parties.



     Cash Collateralize: the delivery of cash to Agent, as security for the payment of
Obligations, in an amount equal to (a) with respect to LC Obligations, 105% of the aggregate LC
Obligations, and (b) with respect to any inchoate, contingent or other Obligations (including
Obligations arising under Bank Products), Agent’s good faith estimate of the amount due or to
become due, including all fees and other amounts relating to such Obligations. “Cash
Collateralization” has a correlative meaning.



     Cash Interest Expense: for any period, the excess of (a) the sum, without duplication,
of (i) the interest expense (including imputed interest expense in respect of Capital Lease
Obligations) of the



-5-









 







Company and its consolidated Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP (and, in any event, including any unused line fees payable during such
period in respect of the credit facilities hereunder), (ii) any interest or other financing costs
becoming payable during such period in respect of Indebtedness of the Company and its consolidated
Subsidiaries to the extent such costs shall have been capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP (other than the debt issuance
costs incurred on or prior to the Closing Date in connection with entering into this Agreement and
the Term Loan Agreement) and (iii) any cash payments made during such period in respect of
obligations referred to in clause (b)(ii) below that were amortized or accrued in a previous
period, minus (b) without duplication and to the extent included in such consolidated interest
expense for such period, the sum of (i) noncash amounts attributable to amortization or write-off
of capitalized interest or other financing costs paid in a previous period and (ii) noncash amounts
attributable to amortization of debt discounts or accrued interest payable in kind for such period.



     Cash Management Services: any services provided from time to time by any Lender or any
of its Affiliates to any Borrower or Subsidiary in connection with operating, collections, payroll,
trust, or other depository or disbursement accounts, including automated clearinghouse, e-payable,
electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository,
information reporting, lockbox and stop payment services.



     Casualty: any event of damage or casualty relating to all or part of the Krotz Springs
Refinery or to inventory owned by Holdings and the Subsidiaries.



     CERCLA: the Comprehensive Environmental Response Compensation and Liability Act (42
U.S.C. § 9601 et seq.).



     Change in Law: the occurrence, after the date hereof, of (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: if:




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




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



-6-









 







election or nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of Parent then in office;




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




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




     (e) any Person other than Parent, or one or more wholly owned subsidiaries of Parent
(or, in respect of such Preferred Equity Interests, any other Affiliate of Parent), shall
acquire ownership of any common Equity Interests or any Preferred Equity Interests in
Holdings: or




     (f) any Person other than Holdings shall acquire ownership of any Equity Interests
(other than Permitted Incentive Compensation Equity Interests) in the Company.



     Claims: all liabilities, obligations, losses, damages, penalties, judgments,
proceedings, interest, costs and expenses of any kind (including remedial response costs,
reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of
the Obligations, resignation or replacement of Agent, or replacement of any Lender) incurred by or
asserted against any Indemnitee in any way relating to (a) any Loans, Letters of Credit, Loan
Documents, or the use thereof or transactions relating thereto, (b) any action taken or omitted to
be taken by any Indemnitee in connection with any Loan Documents, (c) the existence or perfection
of any Liens, or realization upon any Collateral, (d) exercise of any rights or remedies under any
Loan Documents or Applicable Law, or (e) failure by any Obligor to perform or observe any terms of
any Loan Document, in each case including all costs and expenses relating to any investigation,
litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate
proceedings), whether or not the applicable Indemnitee is a party thereto.



     Closing Date: as defined in Section 6.1.



     Code: the Internal Revenue Code of 1986.



     Collateral: all Property described in Section 7.1, all Property described in any
Security Documents as security for any Obligations, and all other Property that now or hereafter
secures (or is intended to secure) any Obligations.



     Colonial Pipeline: shall mean the Colonial Pipeline system operated by the Colonial
Pipeline Company



-7-









 





     Commitment: for any Lender, the aggregate amount of such Lender’s Revolver Commitment.
“Commitments” means the aggregate amount of all Revolver Commitments.



     Commitment Termination Date: the earliest to occur of (a) the Revolver Termination
Date; (b) the date on which Borrowers terminate the Revolver Commitments pursuant to Section 2.1.4;
or (c) the date on which the Revolver Commitments are terminated pursuant to Section 11.2.



     Compliance Certificate: a certificate, in the form of Exhibit H and satisfactory to
Agent, by which Borrowers certify compliance with Sections 10.2.13 and 10.2.14, list all
outstanding Bank Products and the aggregate amount of all Bank Product Debt, and calculate the
applicable Level for the Applicable Margin.



     Condemnation: any taking, exercise of rights of eminent domain, public improvement,
inverse condemnation, condemnation or similar action of or proceeding by any Governmental Authority
or any other Person relating to all or part of the Krotz Springs Refinery.



     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
correlative meanings.



     Cost of Acquisition: with respect to any Acquisition, the sum of the following
(without duplication): (a) the value of the Equity Interests, warrants or options to acquire
Equity Interests of Holdings or any Subsidiary to be transferred in connection therewith, (b) the
amount of any cash and fair market value of other property given as consideration, (c) the amount
of any Indebtedness incurred, assumed or acquired by Holdings or any Subsidiary in connection with
such Acquisition, (d) the aggregate fair market value of all other consideration, including
earnouts, covenants not to compete and contingent obligations, given by Holdings or any Subsidiary
in connection with such Acquisition, and (e) out of pocket transaction costs for the services and
expenses of attorneys, accountants and other consultants incurred in effecting such transaction,
and other similar transaction costs so incurred.



     Crack Spread Hedging Agreement: shall mean the agreement dated as of July 3, 2008,
between the Crack Spread Hedging Counterparty and the Company, together with the schedules and
exhibits thereto.



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



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



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



     CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).



     Debt Rating: with respect to any Person, as of any date of determination, the rating
as determined by either S&P or Moody’s of the Person’s non-credit-enhanced, senior unsecured
long-term debt.



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     Debt Service Reserve Account: a debt service reserve cash collateral account over
which the Term Loan Agent shall have sole control and exclusive rights of withdrawal.



     Debt Service Support LC: an irrevocable standby letter of credit issued, on account of
the Company, in form and substance (including as to the expiration and automatic renewal, if any,
thereof) reasonably satisfactory to the Term Loan Agent.



     Debt Service Support LC Amount: (a) in respect of the Debt Service Support LC, the
aggregate amount of funds on deposit in the Debt Service Reserve Account at the time of the
transfer of such funds pursuant to Section 2.23(b) of the Term Loan Agreement and (b) in respect of
any replacement letter of credit referred to in Sections 2.24(b) or 2.24(c) of the Term Loan
Agreement, the undrawn amount of the Debt Service Support LC in respect of which such replacement
letter of credit is issued.



     Debt Service Support Cash Collateral: not more than $16,000,000 on deposit by or on
behalf of the Company with, or for the benefit of, (a) the Term Loan Agent under the Term Loan
Agreement pursuant to Section 2.23 thereof or (b) the issuer of the Debt Service Support LC,
together with all interest thereon and all products and proceeds thereof, and all securities,
security entitlements, investment property and financial assets arising therefrom.



     Debt Service Support LC Cash Collateral Account: means each deposit account and
securities account the funds, amounts, securities or financial assets on deposits in which, or
credited to, consist solely of the Debt Service Support Cash Collateral.



     Default: an event or condition that, with the lapse of time or giving of notice, would
constitute an Event of Default.



     Default Rate: for any Obligation (including, to the extent permitted by law, interest
not paid when due), 2% plus the interest rate otherwise applicable thereto.



     Deposit Account Control Agreements: the deposit account control agreements, in form
and substance acceptable to Agent, to be executed by each institution maintaining a Deposit Account
for a Borrower, in favor of Agent, for the benefit of Secured Parties, as security for the
Obligations.



     Dilution Percent: the percent, determined for Borrowers’ most recent Fiscal Quarter,
equal to (a) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit
memos and other dilutive items with respect to Accounts, divided by (b) gross
sales.



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



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




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




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



in each case, on or prior to 180 days after the Revolver Termination Date.




-9-









 








     Dollars: lawful money of the United States.



     Domestic Subsidiary: any Subsidiary incorporated or organized under the laws of the
United States of America, any State thereof or the District of Columbia.



     Dominion Account: a special account established by Borrowers at Bank of America or
another bank acceptable to Agent, over which Agent has control for withdrawal purposes.



     Earnout Agreement: the Earnout Agreement to be entered into on the Closing Date by and
between the Company and the Seller pursuant to the Stock Purchase Agreement.



     Earnout Reserve: the reserve in respect of the annual payments that may become due
under the Earnout Agreement, which reserve will be established on the Closing Date in an amount
equal to 25% of such anticipated annual payments for the first Loan Year and will be increased
every 90 days by an additional 25% of such anticipated annual payments until the applicable annual
payment is actually made. Upon receipt by Agent of evidence that a required payment under the
Earnout Agreement has been made, such reserve will be reduced in the amount of such payment, but
not less than zero. On the first day of the following Loan Year (and of each subsequent Loan Year
until all payments under the Earnout Agreement are paid in full), the Earnout Reserve shall be
re-established in an amount equal to 25% of the anticipated annual payments for such Loan Year and
increased quarterly thereafter (and reduced upon payment annually) as described above.



     EBITDA: for any period, Net Income for such period, plus (a) without
duplication and to the extent included in the calculation of such Net Income, the sum of (i)
consolidated interest expense for such period (including imputed interest expense in respect of
Capital Lease Obligations), determined on a consolidated basis in accordance with GAAP, (ii)
consolidated income tax expense for such period, (iii) all amounts attributable to depreciation and
amortization for such period (excluding amortization expense attributable to a prepaid cash item
that was paid in a prior period), (iv) the Transaction Costs, (v) any non-recurring loss to the
extent the Company or any of its consolidated Subsidiaries has received during such period in cash
an indemnification payment in respect of such loss pursuant to the indemnification provisions of
the Stock Purchase Agreement, (vi) earnout expense for such period relating to the Earnout
Agreement and (vii) any noncash charges for such period (excluding inventory write-offs, any bad
debt expense and any noncash charge to the extent it represents an accrual of or a reserve for cash
expenditures in any future period); provided, that any cash payment made with respect to any
noncash items added back in computing EBITDA for any prior period pursuant to this clause (a) shall
be subtracted in computing EBITDA for the period in which such cash payment is made; plus
(b) without duplication and to the extent not included in determining such Net Income, all cash
proceeds of business interruption insurance received by the Company or any of its consolidated
Subsidiaries during such period; and minus (c) without duplication and to the extent
included in determining such Net Income, (i) any extraordinary gains for such period and (ii)
noncash items of income for such period (excluding any noncash items of income (A) in respect of
which cash was received in a prior period or will be received in a future period or (B) that
represents the reversal of any accrual for, or cash reserves for, anticipated cash charges in any
prior period), all determined on a consolidated basis in accordance with GAAP; provided, that
EBITDA for any period shall be calculated to exclude any unrealized non-cash gain or loss for such
period in respect of Hedging Agreements resulting from the application of the Statement of
Financial Accounting Standards No. 133, “Accounting for Derivative Instruments and Hedging
Activities”, or a successor thereto, and the related tax effects.



     Eligible Account: an Account owing to a Borrower that has been properly invoiced and
arises in the Ordinary Course of Business from the sale of goods or the rendition of services, is
payable in Dollars and is deemed by Agent, in its reasonable commercial discretion to be an
Eligible Account. Without limiting the foregoing, no Account shall be an Eligible Account if



-10-









 





          (a) it is unpaid for more than 30 days after the original due date, or more than 45 days after
the original invoice date;




          (b) 50% or more of the Accounts owing by the Account Debtor are not Eligible Accounts
hereunder;




          (c) when aggregated with other Accounts owing by the Account Debtor, it exceeds (i) for Valero
Marketing during the Qualifying Period, 100% of the aggregate of all Eligible Accounts for the
first three months of such period and 40% of the aggregate of all Eligible Accounts for the
remainder of such period, (ii) for any Account Debtor with an Debt Rating of at least “BBB-” from
S&P and “Baa3” from Moody’s, 35% of the aggregate of all Eligible Accounts, and (iii) for all other
Account Debtors, 25% of the aggregate of all Eligible Accounts (or, in the case of clause (ii) and
(iii), such higher percentage as Agent may establish for the applicable Account Debtors from time
to time);




          (d) a covenant or representation herein applicable thereto has been breached;




          (e) it is owing by a creditor, supplier or fulfillment partner, or is otherwise subject to a
potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve, defense,
chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof);




          (f) an Insolvency Proceeding has been commenced by or against the Account Debtor; or the
Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or
winding up its affairs, or is not Solvent;




          (g) the Account Debtor is organized or has its principal offices or assets outside the United
States or Canada;




          (h) it is owing by a Government Authority, unless the Account Debtor is the United States or
any department, agency or instrumentality thereof and the Account has been assigned to Agent in
compliance with the Assignment of Claims Act;




          (i) it is not subject to a duly perfected, first priority Lien in favor of Agent, or is
subject to any other Lien (other than the Term Loan Liens);




          (j) the goods giving rise to it have not been delivered to and accepted by the Account Debtor,
the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does
not represent a final sale;




          (k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to
judgment;




          (l) its payment has been extended or it arises from a sale on a cash-on-delivery basis;




          (m) it arises from a sale to an Affiliate, or from a sale on a bill-and-hold, guaranteed sale,
sale-or-return, sale-on-approval, consignment, or other repurchase or return basis;




          (n) it represents a progress billing or retainage;




          (o) it includes a billing for interest, fees or late charges, but ineligibility shall be
limited to the extent thereof; or




-11-









 








          (p) it arises from a retail sale to a Person who is purchasing for personal, family or
household purposes;



provided, that in calculating delinquent portions of Accounts under clauses (a) and (b) herein,
credit balances more than 45 days old will be excluded; and provided further, that any Account that
would otherwise be ineligible under clauses (a) through (g) or (l) above shall be an Eligible
Account hereunder if and to the extent that the Agent (1) has received a letter of credit naming
the Agent as beneficiary, issued by a financial institution acceptable to Agent and in a stated
amount and containing conditions of drawing and other terms acceptable to Agent, and (2) has
determined that no undue administrative burden has arisen with respect maintaining such letters of
credit and the accommodation hereunder.




     Eligible Assignee: a Person that is (a) a Lender (including any financial institution
joined as a Lender party hereto in connection with the initial syndication of the Revolver
Commitments), U.S.-based Affiliate of a Lender or Approved Fund; (c) any other financial
institution approved by Agent and Borrower Agent (which approval by Borrower Agent shall not be
unreasonably withheld or delayed, and shall be deemed given if no objection is made within five
Business Days after notice of the proposed assignment), that is organized under the laws of the
United States or any state or district thereof, has total assets in excess of $5 billion and whose
becoming an assignee would not constitute a prohibited transaction under Section 4975 of the Code
or any other Applicable Law; and (d) during any Event of Default, any Person acceptable to Agent in
its discretion, or the Term Loan Agent upon exercise of its option to acquire the Obligations
pursuant to the Intercreditor Agreement.



     Eligible Cash: the sum of (a) cash and (b) Permitted Investments of the Borrowers
that have a maturity of one year or less to the extent held in any investment account with Bank of
America or any other Lender that is (i) subject to the first priority Lien of Agent in favor of the
Lenders and (ii) an account control agreement or other arrangement establishing control
satisfactory to Agent.



     Eligible Investments: all Qualifying Investments owned by the Obligors and held in a
custody account subject to the Agent’s dominion and control and that are subject to a valid, first
priority, perfected Lien and security interest in favor of the Agent, for the benefit of the
Lenders.



     Eligible Major Accounts: Eligible Accounts owing from any Account Debtor with a Debt
Rating of “BBB-” or higher from S&P and “Baa3” or higher from Moody’s.



     Eligible Petroleum Inventory: the amount, valued on a Marked-to-Market Basis, of
Petroleum Product owned by the Borrowers and is held for sale or that consists of raw materials
and, in each case, that is subject to a valid, first priority perfected Lien and security interest
in favor of the Agent; provided that, unless the Agent shall otherwise elect in its sole
discretion, Eligible Petroleum Inventory shall not include any Petroleum Product:




     (a) that is held on consignment or not otherwise owned by a Borrower, or is of a type
no longer sold by a Borrower;




     (b) that is obsolete or returned or repossessed or used goods taken in trade;




     (c) that is not in good condition, is unmerchantable, constitutes bottoms, heels or
damaged product or does not meet in all material respects all standards imposed by any
Governmental Authority having regulatory authority over such goods, their use, or sale;




     (d) that is subject to any other Lien whatsoever (other than Term Facility Liens and
the Liens described in clause (b) of the definition of Permitted Encumbrances, provided that
such Liens: (A) are junior in priority to the Agent’s Liens or subject to Availability
Reserves; and



-12-









 







(B) do not impair directly or indirectly the ability of the Agent to realize on or obtain
the full benefit of the Collateral);




     (e) that consists solely of chemicals (other than commodity chemicals maintained in
bulk), samples, prototypes, supplies, or packing and shipping materials;




     (f) that has been shipped to a customer of a Borrower regardless of whether such
shipment is on a consignment basis;




     (g) that is not (A) located at a location owned or leased by a Borrower and set forth
on Schedule 8.6.1 hereto or, (B) if not at such location, in transit between any such
locations;




     (h) that is not currently either usable or salable, at market price, in the normal
course of the Borrowers’ business;




     (i) that contains or bears any Intellectual Property licensed to a Borrower by any
Person, if the Agent is not satisfied that it may sell or otherwise dispose of such
Inventory in accordance with the terms of this Agreement without infringing the rights of
the licensor of such Intellectual Property or violating any contract with such licensor (and
without payment of any royalties other than any royalties due with respect to the sale or
disposition of such Inventory pursuant to the existing license agreement) and as to which
the Borrowers have not delivered to the Agent a consent or sublicense agreement from such
licensor in form and substance acceptable to the Agent if requested; and




     (j) that the Agent shall otherwise designate as ineligible in its credit judgment,
reasonably exercised.



     There shall be maintained at all times a Rent and Charge Reserve for all Inventory that is
located in a public warehouse or in possession of a bailee or in a facility leased by a Borrower
unless a Lien Waiver has been executed and delivered with respect to such location.



     Eligible Petroleum Inventory in Transit: the aggregate value on a Marked-to-Market
Basis of Petroleum Product contracted for purchase by the Borrowers if:



          (a) such Petroleum Product has not, as of such time, been delivered to a Borrower;




          (b) such Petroleum Product has not been included as Eligible Petroleum Inventory in the then
effective Borrowing Base Certificate but will be eligible for inclusion in the Borrowing Base upon
the delivery thereof; and




          (c) a Borrower’s obligation to pay the purchase price of such Petroleum Product is supported
by a Letter of Credit; provided, that for purposes of including such Petroleum Product in the
Borrowing Base, such Petroleum Product shall be valued at an amount not to exceed the maximum
amount available to be drawn of all Letters of Credit supporting the purchase price thereof; and
provided, further, that no portion of such Letter of Credit supporting such purchase price is
included in the Borrowing Base to the extent it is a Paid but Unexpired Letter of Credit.




     Eligible Other Accounts: Eligible Accounts that are not Eligible Major Accounts.



     Enforcement Action: any action to enforce any Obligations or Loan Documents or to
realize upon any Collateral (whether by judicial action, self-help, notification of Account
Debtors, exercise of setoff or recoupment, or otherwise).



-13-









 





     Environmental Agreement: each agreement of Borrowers with respect to all Mortgaged
Properties, pursuant to which Borrowers agree to indemnify and hold harmless Agent and Lenders from
liability under any Environmental Laws.



     Environmental Laws: all Applicable Laws relating to protection of the environment,
natural resources, human health and safety or the presence, Release of, or exposure to, Hazardous
Materials, or the generation, manufacture, processing, distribution, use, treatment, storage,
transport, recycling or handling of, or the arrangement for such activities with respect to,
Hazardous Materials (but excluding occupational safety and health, to the extent regulated by
OSHA), including CERCLA, RCRA and CWA.



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



     Equity Interest: the interest of any (a) shareholder in a corporation; (b) partner in
a partnership (whether general, limited, limited liability or joint venture); (c) member in a
limited liability company; or (d) other Person having any other form of equity security or
ownership interest in any other entity.



     ERISA: the Employee Retirement Income Security Act of 1974.



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



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



-14-









 





     Event of Default: as defined in Section 11.



     Excluded Deposit Accounts: the Debt Service Support LC Cash Collateral Account and the
Debt Service Reserve Account.



     Excluded Tax: with respect to Agent, any Lender, Issuing Bank or any other recipient
of a payment to be made by or on account of any Obligation, (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 of America or any similar tax imposed by any other jurisdiction described in clause
(a) above, and (c) in the case of a Foreign Lender, any withholding tax attributable to such
Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with
Section 5.10, 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 Borrowers with respect to such withholding tax.



     Existing Parent Revolving Credit Agreement: that certain Amended Revolving Credit
Agreement, dated as of June 22, 2006 by and among Alon USA, LP, f/k/a SWBU, L.P., a Texas limited
partnership, as a borrower, such other subsidiaries of the Parent as may be designated as a
borrower thereunder, Parent and all direct and indirect subsidiaries of the Parent (other than the
“Excluded Subsidiaries” as defined therein), each as a guarantor, the financial institutions from
time to time party thereto as lenders, Israel Discount Bank of New York, as administrative agent,
co-arranger and collateral agent for the lenders, and Bank Leumi USA, as co-arranger for the
lenders, as amended by a First Amendment dated as of August 4, 2006, a Waiver, Consent, Partial
Release and Second Amendment dated as of February 28, 2007, a Third Amendment dated as of June 29,
2007, and a Waiver, Consent, Partial Release and Fourth Amendment dated as of the date hereof.



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



     Extraordinary Expenses: all costs, expenses or advances that Agent may incur during a
Default or Event of Default, or during the pendency of an Insolvency Proceeding of an Obligor,
including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal,
insurance, manufacture, preparation or advertising for sale, sale, collection, or other
preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding
(whether instituted by or against Agent, any Lender, any Obligor, any representative of creditors
of an Obligor or any other Person) in any way relating to any Collateral (including the validity,
perfection, priority or avoidability of Agent’s Liens with respect to any Collateral), Loan
Documents, Letters of Credit or Obligations, including any lender liability or other Claims; (c)
the exercise, protection or enforcement of any rights or remedies of Agent in, or the monitoring
of, any Insolvency Proceeding; (d) settlement or satisfaction of any taxes, charges or Liens with
respect to any Collateral; (e) any Enforcement Action; (f) negotiation and documentation of any
modification, waiver, workout, restructuring or forbearance with respect to any Loan Documents or
Obligations; and (g) Protective Advances. Such costs, expenses and advances include transfer fees,
Other Taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees,
legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions,
accountants’ fees, environmental study fees, wages and salaries paid to employees of any Obligor or
independent contractors in liquidating any Collateral, and travel expenses.



     Extraordinary Receipts: net cash amounts received by the Obligors not in the Ordinary
Course of Business in respect of (a) pension plan reversions; (b) judgments, proceeds of
settlements or other consideration of any kind in connection with any cause of action; (c)
indemnity payments; and (d) any



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purchase price adjustment received in connection with any purchase agreement; provided, that
Extraordinary Receipts shall not include cash receipts from indemnity payments to the extent that
such payments are received by any Obligor in respect of any third party claim against such Obligor
and applied to pay (or to reimburse such Obligor for its prior payment of) such claim and the costs
and expenses of such Obligor with respect thereto. As used above, “net cash amount” means the cash
amount of such receipts, net of bona fide direct costs incurred to non-Affiliates of any Obligor in
connection with obtaining such cash receipts, including (i) reasonable and customary costs and
expenses actually incurred in connection therewith, including legal fees and fees of accountants
and consultants, and (ii) transfer or similar taxes.



     ExxonMobil Pipeline Consents: consents by the counterparties to the ExxonMobil
Pipeline Supply Contracts to the security interest of the Agent in the rights of the Acquired
Company thereunder and the right of the Agent to enforce such rights of the Acquired Company
thereunder upon the exercise of its rights as a secured party.



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



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



     Fee Letter: the fee letter agreement dated as of the date hereof between Agent and the
Company.



     Financial Officer: the chief financial officer, principal accounting officer,
treasurer or controller of a Borrower, or if the context requires, another Obligor or the Parent.



     First Purchaser Lien: a statutory Lien created in connection with the sale and
purchase of Petroleum Product, including the statutory Liens, if any, created under the laws of
Texas, New Mexico, Wyoming, Kansas, Oklahoma, or any other state.



     First Purchaser Reserve: the reserve established by the Agent from time to time in an
amount up to the unpaid amount of any payable obligation related to the purchase of Petroleum
Product by the Obligors that the Agent determines may be secured by a First Purchaser Lien to the
extent such payable obligation is not at the time in question covered by a Letter of Credit.



     Fiscal Quarter: each period of three months, commencing on the first day of a Fiscal
Year.



     Fiscal Year: the Fiscal Year of Borrowers and Subsidiaries for accounting and tax
purposes, ending on December 31 of each year.



     Fixed Charges: the sum, determined without duplication and on a consolidated basis for
Company and its consolidated Subsidiaries in accordance with GAAP for any period of calculation
thereof, of (a) Cash Interest Expense for such period plus (b) cash Taxes paid during such
period plus (c) Restricted Payments made during such period plus (d) principal
payments made on Indebtedness for Borrowed Money during such period.



     Fixed Charge Coverage Ratio: the ratio, determined on a consolidated basis for the
Company and its consolidated Subsidiaries for any period of calculation, of (a) EBITDA for such
period minus Capital Expenditures (except those financed with Borrowed Money other than
Loans) made during such period minus payments made under the Earnout Agreement during such period
to (b) Fixed Charges for such period.



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     FLSA: the Fair Labor Standards Act of 1938.



     Four-Quarter Period: a period of four full consecutive Fiscal Quarters of the Company
and its consolidated Subsidiaries, taken together as one accounting period; provided, prior to the
end of the fourth full consecutive Fiscal Quarter of the Company following the Closing Date,
“Four-Quarter Period” shall mean the cumulative number of complete Fiscal Quarters ending after the
Closing Date.



     Foreign Lender: any Lender that is organized under the laws of a jurisdiction other
than the laws of the United States, or any state or district thereof.



     Foreign Plan: any employee benefit plan or arrangement (a) maintained or contributed
to by any Obligor or Subsidiary that is not subject to the laws of the United States; or (b)
mandated by a government other than the United States for employees of any Obligor or Subsidiary.



     Foreign Subsidiary: a Subsidiary that is a “controlled foreign corporation” under
Section 957 of the Code, such that a guaranty by such Subsidiary of the Obligations or a Lien on
the assets of such Subsidiary to secure the Obligations would result in material tax liability to
Borrowers.



     Full Payment: with respect to any Obligations, (a) except as set forth under clause
(b) below, the full and indefeasible cash payment thereof, including any interest, fees and other
charges accruing during an Insolvency Proceeding or that would have accrued but for the
commencement of any Insolvency Proceeding (whether or not allowed or allowable in the proceeding);
(b) if such Obligations are LC Obligations or inchoate or contingent in nature (other than
contingent indemnification obligations for which no claim has been asserted), Cash
Collateralization thereof (or delivery of a standby letter of credit acceptable to Agent in its
discretion, in the amount of required Cash Collateral); and (c) a release of any Claims of Obligors
against each Indemnitee arising on or before the payment date. The Obligations shall not be deemed
to have been paid in full until all Commitments have expired or been terminated.



     GAAP: generally accepted accounting principles in effect in the United States from
time to time.



     Governmental Approvals: all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and required reports to, all Governmental
Authorities.



     Governmental Authority: any federal, state, municipal, foreign or other governmental
department, agency, commission, board, bureau, court, tribunal, instrumentality, political
subdivision, or other entity or officer exercising executive, legislative, judicial, regulatory or
administrative functions for or pertaining to any government or court, in each case whether
associated with the United States, a state, district or territory thereof, or a foreign entity or
government.



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



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     Guarantee and Collateral Agreement: each Guarantee and Collateral Agreement entered
into from time to time among the Obligors (other than Holdings and any Borrowers) and Agent,
substantially in the form of Exhibit B.



     Guarantor: each Subsidiary of the Company from time to time providing a Guarantee and
Collateral Agreement in accordance with the requirements of this Agreement.



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



     Hedging Agreement: an agreement relating to any swap, cap, floor, collar, option,
forward, cross right or obligation, or combination thereof or similar transaction, with respect to
interest rate, foreign exchange, currency, commodity, credit or equity risk.



     Holdings: Alon Louisiana Refining, Inc., a Delaware corporation.



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



     Holdings Guaranty: as defined in Section 15.1.



     Holdings Subordinated Loans: one or more loans extended by Parent or one or more of
its Affiliates (other than Holdings and the Subsidiaries) to Holdings; provided that (a) no such
loan (i) shall be Guaranteed by any Subsidiary, (ii) shall be secured by any Lien on any asset of
Holdings or any Subsidiary or (iii) shall require any payment or other distribution, whether on one
or more fixed dates, upon the occurrence of one or more events or otherwise, of principal or cash
interest prior to Full Payment of the Obligations has occurred, except for any payments expressly
permitted under Section 10.2.8(b)(iv) and (b) the obligee thereunder shall have entered into a
Holdings Subordination Agreement with respect thereto.



     Holdings Subordination Agreement: an agreement among Holdings, the Agent and one or
more Persons that shall have made Holdings Subordinated Loans, substantially in the form of Exhibit
G.



     Hydrocarbon Agreement: any purchase or hedging agreement in respect of hydrocarbons or
products refined therefrom, future contract or option or other agreement or arrangement, in each
case, designed to protect such Person against fluctuations in the price of hydrocarbons or products
refined therefrom.



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



     IDB Consents: the amendments, consents or waivers under the IDB Agreement as may be
required to permit thereunder the consummation of the Transactions.



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



     Indebtedness: with respect to any Person, without duplication, (a) all obligations of
such Person for borrowed money or with respect to deposits or advances by other Persons of any
kind, (b) all



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



     Indemnified Taxes: Taxes other than Excluded Taxes.



     Indemnitees: Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank
of America Indemnitees.



     Insolvency Proceeding: any case or proceeding commenced by or against a Person under
any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an
order for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt
adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator
or other custodian for such Person or any part of its Property; or (c) an assignment or trust
mortgage for the benefit of creditors.



     Intellectual Property: all intellectual and similar Property of a Person, including
inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets,
confidential or proprietary information, customer lists, know-how, software and databases; all
embodiments or fixations thereof and all related documentation, applications, registrations and
franchises; all licenses or other rights to use any of the foregoing; and all books and records
relating to the foregoing.



     Intellectual Property Claim: any claim or assertion (whether in writing, by suit or
otherwise) that a Borrower’s or Subsidiary’s ownership, use, marketing, sale or distribution of any
Inventory, Equipment, Intellectual Property or other Property violates another Person’s
Intellectual Property.



     Intercreditor Acknowledgement: a Consent and Acknowledgement dated as of the date
hereof, executed by Holdings and the Company, as such Consent and Acknowledgement may be
supplemented from time to time.



     Intercreditor Agreement: the Intercreditor Agreement dated as of the date hereof by
and between Agent and the Term Loan Agent, substantially in the form of Exhibit F.



     Interest Period: as defined in Section 3.1.3.



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     Inventory: as defined in the UCC, including all goods intended for sale, lease,
display or demonstration; all work in process; and all raw materials, crude oil, natural gas,
natural gas liquids, gasoline, diesel, aviation fuel, fuel oil, propane, ethanol, and other
hydrocarbons and other refined products and other materials and supplies of any kind that are or
could be used in connection with the manufacture, printing, packing, shipping, advertising, sale,
lease or furnishing of such goods, or otherwise used or consumed in a Borrower’s business (but
excluding Equipment).



     Inventory Reserve: reserves established by Agent to reflect factors that may
negatively impact the value of Inventory, including change in salability, obsolescence,
seasonality, theft, shrinkage, imbalance, change in composition or mix, markdowns and vendor
chargebacks.



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



     IP Security Agreements: the Patent Security Agreement and the Patent Assignment.



     IRS: the United States Internal Revenue Service.



     Issuing Bank: Bank of America or an Affiliate of Bank of America.



     Issuing Bank Indemnitees: Issuing Bank and its officers, directors, employees,
Affiliates, agents and attorneys.



     Krotz Springs Refinery: as defined in the Recitals hereto.



     Krotz Springs Refining Business: as defined in the notes to the audited financial
statements referred to in Section 9.1.5.



     LC Application: an application by Borrower Agent to Issuing Bank for issuance of a
Letter of Credit, in form and substance satisfactory to Issuing Bank.



     LC Conditions: the following conditions necessary for issuance of a Letter of Credit:
(a) each of the conditions set forth in Section 6; (b) after giving effect to such issuance, total
LC Obligations do not exceed the Letter of Credit Subline, no Overadvance exists and, if no
Revolver Loans are outstanding, the LC Obligations do not exceed the Borrowing Base (without giving
effect to outstanding LC Obligations in the case of the applicability of clause (a) of the defined
term Borrowing Base, and without giving effect to the LC Reserve in the case of applicability of
clause (b) of the defined term Borrowing Base, in each case for purposes of this calculation); (c)
the expiration date of such Letter of Credit is (i) no more than 365 days from issuance, in the
case of standby Letters of Credit, (ii) no more than 120 days from



-20-









 







issuance, in the case of documentary Letters of Credit, and (iii) at least 30 Business Days
prior to the Revolver Termination Date; (d) the Letter of Credit and payments thereunder are
denominated in Dollars; and (e) the purpose and form of the proposed Letter of Credit is
satisfactory to Agent and Issuing Bank in their discretion.



     LC Documents: all documents, instruments and agreements (including LC Requests and LC
Applications) delivered by Borrowers or any other Person to Issuing Bank or Agent in connection
with issuance, amendment or renewal of, or payment under, any Letter of Credit.



     LC Obligations: the sum (without duplication) of (a) all amounts owing by Borrowers
for any drawings under Letters of Credit; (b) the stated amount of all outstanding Letters of
Credit; and (c) all fees and other amounts owing with respect to Letters of Credit.



     LC Request: a request for issuance of a Letter of Credit, to be provided by Borrower
Agent to Issuing Bank, in form satisfactory to Agent and Issuing Bank.



     LC Reserve: the aggregate of all LC Obligations, other than (a) those that have been
Cash Collateralized; and (b) if no Default or Event of Default exists, those constituting charges
owing to the Issuing Bank.



     Lender Indemnitees: Lenders and their officers, directors, employees, Affiliates,
agents and attorneys.



     Lenders: as defined in the preamble to this Agreement, including Agent in its capacity
as a provider of Swingline Loans and any other Person who hereafter becomes a “Lender” pursuant to
an Assignment and Acceptance.



     Lending Office: the office designated as such by the applicable Lender at the time it
becomes party to this Agreement or thereafter by notice to Agent and Borrower Agent.



     Letter of Credit: any standby or documentary letter of credit issued by Issuing Bank
for the account of a Borrower, or any indemnity, guarantee, exposure transmittal memorandum or
similar form of credit support issued by Agent or Issuing Bank for the benefit of a Borrower.



     Letter of Credit Subline: means an amount equal to the aggregate Revolver Commitments.



     LIBOR: for any Interest Period with respect to a LIBOR Loan, the per annum rate of
interest (rounded upward, if necessary, to the nearest 1/8th of 1%), determined by Agent at
approximately 11:00 a.m. (London time) two Business Days prior to commencement of such Interest
Period, for a term comparable to such Interest Period, equal to (a) the British Bankers Association
LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source
designated by Agent); or (b) if BBA LIBOR is not available for any reason, the interest rate at
which Dollar deposits in the approximate amount of the LIBOR Loan would be offered by Bank of
America’s London branch to major banks in the London interbank Eurodollar market. If the Board of
Governors imposes a Reserve Percentage with respect to LIBOR deposits, then LIBOR shall be the
foregoing rate, divided by 1 minus the Reserve Percentage.



     LIBOR Loan: each set of LIBOR Revolver Loans having a common length and commencement
of Interest Period.



     LIBOR Revolver Loan: a Revolver Loan that bears interest based on LIBOR.



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     License: any license or agreement under which an Obligor is authorized to use
Intellectual Property in connection with any manufacture, marketing, distribution or disposition of
Collateral, any use of Property or any other conduct of its business.



     Licensor: any Person from whom an Obligor obtains the right to use any Intellectual
Property.



     Lien: any Person’s interest in Property securing an obligation owed to, or a claim by,
such Person, whether such interest is based on common law, statute or contract, including liens,
security interests, pledges, hypothecations, statutory trusts, reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases, and other
title exceptions and encumbrances affecting Property.



     Lien Waiver: an agreement, in form and substance satisfactory to Agent, by which (a)
for any material Collateral located on leased premises, the lessor waives or subordinates any Lien
it may have on the Collateral, and agrees to permit Agent to enter upon the premises and remove the
Collateral or to use the premises to store or dispose of the Collateral; (b) for any Collateral
held by a warehouseman, processor, shipper, customs broker, fulfillment partner or freight
forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to
hold any Documents in its possession relating to the Collateral as agent for Agent, and agrees to
deliver the Collateral to Agent upon request or permit the Agent to remove the Collateral upon
request; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges
Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver
the Collateral to Agent upon request or permit the Agent to remove the Collateral upon request; and
(d) for any Collateral subject to a Licensor’s Intellectual Property rights, the Licensor grants to
Agent the right, vis-à-vis such Licensor, to enforce Agent’s Liens with respect to the Collateral,
including the right to dispose of it with the benefit of the Intellectual Property, whether or not
a default exists under any applicable License.



     Loan: a Revolver Loan.



     Loan Account: the loan account established by each Lender on its books pursuant to
Section 5.8.



     Loan Documents: this Agreement, Other Agreements and Security Documents.



     Loan Year: each 12 month period commencing on the Closing Date and on each anniversary
of the Closing Date.



     Low Availability Period: means each period beginning on each Low Availability Trigger
Date and ending on the first day of the second calendar month following the month in which such Low
Availability Trigger Date occurs, provided, that if such Low Availability Period arises based
exclusively on the occurrence or continuance of a Default or Event of Default, such Low
Availability Period shall end on the date on which such Default or Event of Default shall be cured
or waived. For the avoidance of doubt, any two or more Low Availability Periods may run
concurrently and/or consecutively and a Low Availability Period shall be deemed to remain in effect
until all Low Availability Periods have ended. The parties hereto acknowledge that a Low
Availability Period exists on the Closing Date.



     Low Availability Trigger Date: each date on which any of the following occur: (a)
Availability is less than an amount equal to 15% of the total Revolver Commitments on such date,
(b) any date on which a Default or Event of Default occurs or (c) any date on which an Event of
Default is continuing.



     Margin Stock: as defined in Regulation U of the Board of Governors.



     Marked-to-Market Basis: at the relevant time of reference thereto: (a) as to the
Obligors’ inventory of Petroleum Product with respect to which the Obligors have existing firm
contracts to sell



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such inventory, the specified price to be paid for such inventory under such contracts; and
(b) as to other Petroleum Product inventory, for each type of such Petroleum Product specified on
Schedule 1.2 hereto, as determined by reference to the pricing method specified for such type of
inventory on Schedule 1.2 hereto; provided that if a price or quotation is not available for a
particular type of Petroleum Product for any reason on a particular Business Day, the most recently
available price or quotation from a prior Business Day shall be used for that type of Petroleum
Product inventory. Notwithstanding the foregoing, if prices or quotations are not publicly
available in accordance with the foregoing methodology for more than a five-Business Day period for
a particular type of inventory and there is a reasonable likelihood that such prices or quotations
will not be available for any extended period of time for that product (i) the Agent and the
Borrower Agent shall meet and confer in good faith as soon as is practicable in order to attempt to
establish a new mechanism for determining the fair market value of the product in question; and
(ii) until such time as a new mechanism is agreed to by the Agent and the Borrower Agent, the fair
market value of the particular type of inventory for which prices or quotes are no longer available
shall be reasonably determined by the Agent.



     Material Adverse Effect: the effect of any event or circumstance that, taken alone or
in conjunction with other events or circumstances, (a) has or could be reasonably expected to have
a material adverse effect (i) on the business, assets, results of operations or condition
(financial or otherwise) of the Obligors taken as a whole, or (ii) on the enforceability of this
Agreement, or any other material Loan Document against the Obligors; (b) materially impairs the
ability of the Obligors, taken as a whole to perform any of their obligations under the Loan
Documents, including repayment of any material Obligations; or (c) otherwise materially impairs (i)
the ability of Agent or any Lender to realize upon any material portion of the ABL Priority
Collateral or (ii) the rights of Agent or any Lender to realize upon any material portion of the
Non-ABL Priority Collateral in a manner consistent with the Intercreditor Agreement.



     Material Contract: any agreement or arrangement to which a Borrower or Subsidiary is
party (other than the Loan Documents) (a) that is deemed to be a material contract under any
securities law applicable to such Obligor, including the Securities Act of 1933; (b) for which
breach, termination, nonperformance or failure to renew could reasonably be expected to have a
Material Adverse Effect; (c) that relates to the purchase, sale, storage or shipment of Petroleum
Product or Inventory (including any terminal leases) and that involves greater than $20,000,000 in
obligations and are for greater than 90 day terms or (d) that relates to Material Indebtedness.



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



     Merger: as defined in the Recitals hereto.



     Moody’s: Moody’s Investors Service, Inc., and its successors.



     Mortgage: each mortgage, deed of trust or deed to secure debt pursuant to which a
Borrower or other Obligor grants to Agent, for the benefit of Secured Parties, Liens upon the Real
Estate owned by such Borrower or other Obligor, as security for the Obligations.



-23-









 





     Mortgaged Properties: all Real Estate, including leasehold interests and pipeline
rights of way and easements appurtenant, owned or leased by Holdings or any Subsidiary as of such
time, other than the real property interests set forth on Schedule 1.3.



     Multiemployer Plan: a multiemployer plan as defined in Section 4001(a)(3) of ERISA.



     Net Amount: with respect to Eligible Major Accounts and Eligible Other Accounts, the
gross amount of such Eligible Accounts less unpaid sales, excise, or similar taxes, and less
returns, discounts, claims, credits, allowances, accrued rebates, offsets, deductions,
counterclaims, disputes, Negative Exchange Balances and other defenses of any nature at any time
issued, owing, granted, outstanding, available or claimed.



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



     Net Proceeds: with respect to an Asset Disposition, proceeds (including, when
received, any deferred or escrowed payments) received by any Obligor in cash from such disposition,
net of (a) reasonable and customary costs and expenses actually incurred in connection therewith,
including legal fees and sales commissions; (b) amounts applied to repayment of Indebtedness
secured by a Permitted Lien senior to Agent’s Liens on Collateral sold; (c) transfer or similar
taxes; and (d) reserves for indemnities and post-closing purchase price adjustments, until such
reserves are no longer needed.



     Non-ABL Priority Collateral: as defined in the Intercreditor Agreement.



     No-Offset Agreement: a No-Offset Agreement in form and substance acceptable to Agent
between an Account Debtor, any Borrower and Agent.



     Notes: each Revolver Note or other promissory note executed by a Borrower to evidence
any Obligations.



     Notice of Borrowing: a Notice of Borrowing to be provided by Borrower Agent to request
a Borrowing of Revolver Loans, in form satisfactory to Agent.



     Notice of Conversion/Continuation: a Notice of Conversion/Continuation to be provided
by Borrower Agent to request a conversion or continuation of any Loans as LIBOR Loans, in form
satisfactory to Agent.



     Obligations: all (a) principal of and premium, if any, on the Loans, (b) LC
Obligations and other obligations of Obligors with respect to Letters of Credit, (c) interest,
expenses, fees and other sums



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payable by Obligors under the Loan Documents, (d) obligations of Obligors under any indemnity
for Claims, (e) Extraordinary Expenses, (f) Bank Product Debt, and (g) other Indebtedness,
obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents, whether
now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in
any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of
credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect,
absolute or contingent, due or to become due, primary or secondary, or joint or several; provided,
that in no event shall Bank Product Debt payable to any Lender or any Affiliate of any Lender
(other than Bank of America and its Affiliates) constitute “Obligations” unless (i) such Bank
Product Debt was incurred after such Lender or such Affiliate has provided written notice to Agent
in the form of Exhibit E attached hereto that such Lender or Affiliate intends to provide Bank
Products and the amount and nature thereof (together with written notice to Agent if at any time
the aggregate amount of Bank Product Debt payable to such Lender increases by more than $100,000)
and setting forth a reasonably detailed calculation thereof; (ii) sufficient Availability exists to
impose a Bank Product Reserve in respect of such Bank Product Debt without creating a Low
Availability Period, (iii) Agent has established such Bank Product Reserve, and (iv) Agent has
acknowledged in writing to such Lender or such Affiliate that the foregoing conditions have been
met and the applicable Bank Product Debt constitutes “Obligations” under this Agreement (which
notice Agent agrees to deliver promptly following the satisfaction of the conditions set forth in
the foregoing clauses (i), (ii), and (iii) by countersignature to the notice from such Lender or
Affiliate described above in the form of Exhibit E attached hereto).



     Obligor: each Borrower, and each Guarantor.



     Offtake Agreement: the Offtake Agreement to be entered into on the Closing Date by and
among the Company, the Acquired Company and Valero Marketing pursuant to the Stock Purchase
Agreement.



     Ordinary Course of Business: the ordinary course of business of the Company or its
Subsidiary, consistent with past practices of the Company and the Acquired Company and undertaken
in good faith.



     Organic Documents: with respect to any Person, its charter, certificate or articles of
incorporation, bylaws, articles of organization, limited liability agreement, operating agreement,
members agreement, shareholders agreement, partnership agreement, certificate of partnership,
certificate of formation, voting trust agreement, or similar agreement or instrument governing the
formation or operation of such Person.



     OSHA: the Occupational Safety and Hazard Act of 1970.



     Other Agreement: each Note; the Intercreditor Agreement; the Intercreditor
Acknowledgement; the Related Real Estate Documents; each LC Document; the Fee Letter; each Lien
Waiver; each Borrowing Base Certificate; each Compliance Certificate; each financial statement or
report delivered hereunder; or each other document, instrument or agreement (other than this
Agreement or a Security Document) now or hereafter delivered by an Obligor or other Person to Agent
or a Lender in connection with any transactions relating hereto.



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



     Overadvance: as defined in Section 2.1.5.



     Overadvance Loan: a Base Rate Loan made when an Overadvance exists or is caused by the
funding thereof.



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     Paid but Unexpired Letters of Credit: at any given time, the difference between
(a) the maximum amount available to be drawn on all Letters of Credit issued in connection with
purchases of Petroleum Product by the Obligors; and (b) the aggregate outstanding amounts payable
by the Obligors to the suppliers of Petroleum Product delivered to the Obligors in connection with
such purchases



     Parent: Alon USA Energy, Inc., a Delaware corporation.



     Participant: as defined in Section 13.2.



     Patent Assignment: each patent collateral assignment agreement pursuant to which an
Obligor assigns to Agent, for the benefit of Secured Parties, such Obligor’s interests in its
patents, as security for the Obligations.



     Patriot Act: the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).



     Payment Item: each check, draft or other item of payment payable to a Borrower,
including those constituting proceeds of any Collateral.



     PBGC: the Pension Benefit Guaranty Corporation.



     Permitted Acquisition: the Valero Acquisition and any other Acquisition with respect
to which (a) the Person to be (or whose assets are to be) acquired does not oppose such Acquisition
and the line or lines of business of the Person to be acquired are substantially the same as one or
more line or lines of business conducted by the Borrowers, (b) the Person to be acquired has
reported positive EBITDA (calculated substantially as defined in this Agreement) for the period of
four consecutive Fiscal Quarters most recently preceding such Acquisition, (c) no Default or Event
of Default shall have occurred and be continuing either immediately prior to or immediately after
giving effect to such Acquisition, (d) no Low Availability Trigger Date shall exist or arise as a
result of such Acquisition, (e) the Borrowers shall have furnished to Agent a certificate of a
Financial Officer certifying that no none of the liabilities or other obligations assumed, acquired
or arising in connection with the Acquisition could reasonably be expected to have a Material
Adverse Effect, and (f) the Person acquired shall become a Borrower or be merged into a Borrower
immediately upon consummation of the Acquisition (or if assets are being acquired, the acquiror
shall be a Borrower).



     Permitted Asset Disposition: any Asset Disposition permitted under Section 10.2.6.



     Permitted Compensation Incentive Equity Interests: as defined in Section 10.2.6(c).



     Permitted Encumbrances: the following:



     (a)  Liens imposed by law for Taxes that are not yet due or are being contested in compliance
with Section 10.1.3;



     (b)  landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, consignors’,
repairmen’s and other like Liens imposed by law, arising in the Ordinary Course of Business and
securing obligations not in excess of $3,000,000 (unless an adequate reserve acceptable to the
Agent has been established by it) that (i) are not overdue by more than 30 days, or (ii) are being
contested in compliance with Section 10.1.3 or (iii) for which the applicable statutory foreclosure
period and all other enforcement rights have lapsed;



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



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



     (e)  judgment liens in respect of judgments that do not constitute an Event of Default under
Section 11.1(g);



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



     (g) Liens listed on any policy of title insurance acceptable to the Agent insuring the Lien of
any Mortgage as an exception to the priority of such Lien on the Mortgaged Property described
therein;



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



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



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



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



     Permitted Guarantees: Guarantees of the Obligors (a) arising from endorsements of
Payment Items for collection or deposit in the Ordinary Course of Business; (b) arising from
Hedging Agreements permitted hereunder; (c) existing on the Closing Date, and any extension or
renewal thereof that does not increase the amount of such Guarantee when extended or renewed;
(d) incurred in the Ordinary Course of Business with respect to surety, appeal or performance
bonds, or other similar obligations; (e) arising from customary indemnification obligations in
favor of purchasers in connection with dispositions of Equipment permitted hereunder; (f) arising
under the Loan Documents; (g) of trade payables of another Obligor arising in the Ordinary Course
of Business or (g) in an aggregate amount of $100,000 or less at any time.



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



-27-









 




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




     Permitted Investments:



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



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



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



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



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



     Permitted Lien: as defined in Section 10.2.2.



     Permitted Term Loan Facility: as defined in Section 10.2.1



     Person: any individual, corporation, limited liability company, partnership, joint
venture, joint stock company, land trust, business trust, unincorporated organization, Governmental
Authority or other entity.



     Petroleum Product: crude oil, intermediate feedstocks, blendstocks, and finished and
unfinished petroleum products, including without limitation, asphalt, gasoline, diesel fuels, fuel
oil, jet fuels, and atmospheric gas oil; provided that such term shall not include solvents.



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



     Pledged Collateral: as defined in Section 7.4.1.



     Pledged Debt Securities: as defined in Section 7.4.1.



     Pledged Equity Interests: as defined in Section 7.4.1.



     Preferred Equity Interests: as applied to the Equity Interests of any Person, Equity
Interests of any class or classes (however designated) that is preferred as to the payment of
dividends or distributions, or



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as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution
of such Person, over Equity Interests of any other class of such Person.



     Pro Rata: with respect to any Lender, a percentage (carried out to the ninth decimal
place) determined (a) while Revolver Commitments are outstanding, by dividing the amount of such
Lender’s Revolver Commitment by the aggregate amount of all Revolver Commitments; and (b) at any
other time, by dividing the amount of such Lender’s Loans and LC Obligations by the aggregate
amount of all outstanding Loans and LC Obligations.



     Proceeds Collateral Account: as defined in Section 8.6.2(a).



     Property: any interest in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible.



     Protective Advances: as defined in Section 2.1.6.



     Purchase Money Debt: (a) Indebtedness (other than the Obligations) for payment of any
of the purchase price of fixed assets; (b) Indebtedness (other than the Obligations) incurred
within 10 days before or after acquisition of any fixed assets, for the purpose of financing any of
the purchase price thereof; and (c) any renewals, extensions or refinancings (but not
increases) thereof.



     Purchase Money Lien: a Lien that secures Purchase Money Debt, encumbering only the
fixed assets acquired with such Indebtedness and constituting a Capital Lease, Synthetic Lease or a
purchase money security interest under the UCC.



     Qualifying Investment: readily marketable obligations that (a) (i) are rated A or A-1
or better by S&P or A or P-1 or better by Moody’s, or (ii) are issued or guaranteed by the United
State of America or any agency thereof, or (iii) constitute investments in money market funds rated
A or higher by S&P and (b) mature prior to the Revolver Termination Date.



     Qualifying Period: the period during which Valero Marketing both (a) remains a party
to an effective No-Offset Agreement and (b) maintains a Debt Rating of “BBB-” or higher from S&P
and “Baa3” or higher from Moody’s.



     RCRA: the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i).



     Real Estate: all right, title and interest (whether as owner, lessor or lessee) in any
real Property or any buildings, structures, parking areas or other improvements thereon.



     Refinancing Indebtedness: (a) in respect of Indebtedness created under the Term Loan
Agreement, or under any credit agreement that extends, renews, refinances or replaces the Term Loan
Agreement (the “Original Term Indebtedness”), any Indebtedness created under any credit
agreement that extends, renews, refinances or replaces the Term Loan Agreement (or such other
credit agreement) as a whole and not in part; provided that (a) the maturity of such Refinancing
Indebtedness shall not be earlier, and the weighted average life to maturity of such Refinancing
Indebtedness shall not be shorter, than that of such Original Term Indebtedness; (b) such
Refinancing Indebtedness shall not be required to be repaid or prepaid (in any manner), whether on
one or more fixed dates, upon the occurrence of one or more events or at the option of any holder
thereof (except, in each case, (i) upon the occurrence of an event of default or a change in
control, or (ii) as and to the extent such repayment or prepayment would have been required
pursuant to the terms of such Original Term Indebtedness) prior to the earlier of (A) the maturity
of such Original Term Indebtedness and (B) the date 180 days after the Revolver Termination Date;
and (c) such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the
assets that secured such Original Term Indebtedness (or would have been required to secure such
Original Term



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Indebtedness pursuant to the terms thereof), and the secured parties thereunder, or an agent
on their behalf, shall have become a party to the Intercreditor Agreement.



     Reimbursement Date: as defined in Section 2.3.2.



     Related Real Estate Documents: with respect to any Real Estate subject to a Mortgage,
the following, in form and substance satisfactory to Agent and received by Agent for review at
least 15 days prior to the effective date of the Mortgage: (a) a mortgagee title policy (or binder
therefor) covering Agent’s interest under the Mortgage, in a form and amount and by an insurer
acceptable to Agent, which must be fully paid on such effective date; (b) such assignments of
leases, estoppel letters, attornment agreements, consents, waivers and releases as Agent may
require with respect to other Persons having an interest in the Real Estate; (c) a current,
as-built survey of the Real Estate, containing a metes-and-bounds property description and flood
plain certification, and certified by a licensed surveyor acceptable to Agent; (d) flood insurance
in an amount, with endorsements and by an insurer acceptable to Agent, if the Real Estate is within
a flood plain; (e) a current appraisal of the Real Estate, prepared by an appraiser acceptable to
Agent, and in form and substance satisfactory to Required Lenders; (f) an environmental assessment,
prepared by environmental engineers acceptable to Agent, and accompanied by such reports,
certificates, studies or data as Agent may reasonably require, which shall all be in form and
substance satisfactory to Required Lenders; and (g) an Environmental Agreement and such other
documents, instruments or agreements as Agent may reasonably require with respect to any
environmental risks regarding the Real Estate.



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



     Rent and Charges Reserve: the aggregate of (a) all past due rent and other amounts
owing by an Obligor to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight
forwarder, broker or other Person who possesses any Collateral or could assert a Lien on any
Collateral; and (b) a reserve at least equal to three months rent and other charges that could be
payable to any such Person, unless it has executed a Lien Waiver.



     Report: as defined in Section 12.2.3.



     Reportable Event: 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.



     Required Lenders: Lenders (subject to Section 4.2) having (a) Revolver Commitments in
excess of 50% of the aggregate Revolver Commitments; and (b) if the Revolver Commitments have
terminated, Loans and LC Obligations in excess of 50% of all outstanding Loans and LC Obligations.



     Reserve Percentage: the reserve percentage (expressed as a decimal, rounded upward to
the nearest 1/8th of 1%) applicable to member banks under regulations issued from time to time by
the Board of Governors for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as “Eurocurrency liabilities”).



     Restricted Payment: (a) any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in Holdings or any Subsidiary,
or any payment (whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any Equity Interests in Holdings or any Subsidiary, (b) any management, monitoring,
transaction, advisory or similar fees



-30-









 




payable to Parent, Holdings or any Affiliate of either of the
foregoing (other than any Subsidiary), and
(c) any distribution, advance or repayment in respect of Indebtedness of Holdings or any
Borrower owing to a holder of Equity Interests of Holdings.




     Restrictive Agreement: an agreement (other than a Loan Document) that conditions or
restricts the right of any Borrower, Subsidiary or other Obligor to incur or repay Borrowed Money,
to grant Liens on any assets, to declare or make Restricted Payments, to modify, extend or renew
any agreement evidencing Borrowed Money, or to repay any intercompany Indebtedness.



     Revolver Commitment: for any Lender, its obligation to make Revolver Loans and to
participate in LC Obligations up to the maximum principal amount shown on Schedule 1.1 (as such
amount may be increased in accordance with Section 2.2), or as hereafter determined pursuant to
each Assignment and Acceptance to which it is a party. “Revolver Commitments” means the
aggregate amount of such commitments of all Lenders.



     Revolver Increase Closing Date: as defined in Section 2.2.4



     Revolver Loan: a loan made pursuant to Section 2.1, any Swingline Loan and any
Overadvance Loan or Protective Advance.



     Revolver Note: a promissory note to be executed by Borrowers in favor of a Lender in
the form of Exhibit A, which shall be in the amount of such Lender’s Revolver Commitment and shall
evidence the Revolver Loans made by such Lender.



     Revolver Termination Date: July 3, 2013.



     Revolving Credit Facility: at any time, the aggregate amount of Lenders’ Revolver
Commitments at such time, including after giving effect to any increase in the aggregate Revolver
Commitments pursuant to Section 2.2.



     Royalties: all royalties, fees, expense reimbursement and other amounts payable by a
Borrower under a License.



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



     S&P: Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., and its successors.



     Secured Parties: Agent, Issuing Bank, Lenders and providers of Bank Products.



     Security Documents: the Mortgages, the IP Security Agreements, any Guarantee and
Collateral Agreement, the Deposit Account Control Agreements, and all other documents, instruments
and agreements now or hereafter securing (or given with the intent to secure) any Obligations.



     Seller: as defined in the Recitals hereto.



     Senior Officer: the chairman of the board, president, chief executive officer,
treasurer or chief financial officer of a Borrower or, if the context requires, another Obligor or
Parent.



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     Settlement Report: a report delivered by Agent to Lenders summarizing the Revolver
Loans and participations in LC Obligations outstanding as of a given settlement date, allocated to
Lenders on a Pro Rata basis in accordance with their Revolver Commitments.



     Shared Deposit Accounts: the Crack Spread Hedging Cash Collateral Account (as defined
in the Intercreditor Agreement), the Proceeds Collateral Account (as defined in the Term Loan
Agreement), and the Asset Sales Collateral Account (as defined in the Term Loan Agreement).



     Solvent: as to any Person, such Person (a) owns Property whose fair salable value is
greater than the amount required to pay all of its debts (including contingent, subordinated,
unmatured and unliquidated liabilities); (b) owns Property whose present fair salable value (as
defined below) is greater than the probable total liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities) of such Person as they become absolute and matured; (c) is
able to pay all of its debts as they mature; (d) has capital that is not unreasonably small for its
business and is sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section
101(32) of the Bankruptcy Code; and (f) has not incurred (by way of assumption or otherwise) any
obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any
conveyance in connection therewith, with actual intent to hinder, delay or defraud either present
or future creditors of such Person or any of its Affiliates. “Fair salable value” means
the amount that could be obtained for assets within a reasonable time, either through collection or
through sale under ordinary selling conditions by a capable and diligent seller to an interested
buyer who is willing (but under no compulsion) to purchase.



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



     Subsidiary: with respect to any Person (referred to as the “parent”), any corporation,
partnership, limited liability company, association or other business entity (a) of which Equity
Interests representing more than 50% of the Equity Interests or more than 50% of the Voting Stock
are, at the time any determination is being made, owned, Controlled or held by the parent and one
or more subsidiaries of the parent, or (b) that is, at the time any determination is made,
otherwise Controlled by the parent or one or more subsidiaries of the parent. Unless the context
otherwise indicates, the term “Subsidiary” shall mean a Subsidiary of Holdings.



     Supporting Letter of Credit: collectively, those certain irrevocable standby letters
of credit in form and substance satisfactory to the Agent, issued by Bank Hapoalim or other
financial institution acceptable to Agent, in an aggregate face amount and maintained in accordance
with Section 10.1.14.



     Swingline Loan: any Borrowing of Base Rate Revolver Loans funded with Agent’s funds,
until such Borrowing is settled among Lenders pursuant to Section 4.1.3.



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



     Synthetic Lease Obligations: as to any person, an amount equal to the capitalized
amount of the remaining lease payments under any Synthetic Lease (determined, in the case of a
Synthetic Lease providing for an option to purchase the leased property, as if such purchase were
required at the end of the



-32-









 




term thereof) that would appear on a balance sheet of such person
prepared in accordance with GAAP if such obligations were accounted for as Capital Lease
Obligations.




     Taxes: all present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto. 



     Term Facility Liens: Liens arising under the Term Loan Documents in favor of the Term
Loan Agent and the Secured Parties under and as defined in the Term Loan Agreement, to the extent
such Liens are subject to the Intercreditor Agreement.



     Term Loan Agent: Credit Suisse, Cayman Islands Branch, and any successor thereto, as
the administrative agent and the collateral agent under the Term Loan Documents.



     Term Loan Agreement: the Term Loan Agreement dated as of the date hereof by and among
the Company, Holdings, the financial institutions party thereto as lenders, and the Term Loan
Agent.



     Term Loan Documents: the Term Loan Agreement and the “Loan Documents” as defined in
the Term Loan Agreement.



     Term Loan Facility: as defined in the Recitals hereto.



     Trademark Security Agreement: each trademark security agreement pursuant to which an
Obligor grants to Agent, for the benefit of Secured Parties, a Lien on such Obligor’s interests in
trademarks, as security for the Obligations.



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



     Transactions: (a) the consummation of the Valero Acquisition and the Merger, (b) the
Holdings Contribution and the transfer by Holdings of all the proceeds thereof to the Company as a
contribution to the common equity of the Company, (c) the execution, delivery and performance by
each Obligor of the Loan Documents to which it is to be a party, the borrowing of the Loans and the
use of the proceeds thereof, (d) the execution, delivery and performance by Holdings and its
Subsidiaries party thereto of the Term Loan Documents, the borrowing of loans and the use of the
proceeds thereof, (e) the execution, delivery and performance by the Company of the Crack Spread
Hedging Agreement and (f) the payment of the Transaction Costs.



     Transferee: any actual or potential Eligible Assignee, Participant or other Person
acquiring an interest in any Obligations.



     Type: any type of a Loan (i.e., Base Rate Loan or LIBOR Loan) that has the same
interest option and, in the case of LIBOR Loans, the same Interest Period.



     UCC: the Uniform Commercial Code as in effect in the State of New York or, when the
laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform
Commercial Code of such jurisdiction.



     Unfunded Pension Liability: the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the
Code for the applicable plan year.



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     Unused Line Fee: as defined in Section 3.2.1.



     Valero Acquisition: as defined in the Recitals hereto.



     Valero Marketing: Valero Marketing and Supply Company, a Delaware corporation.



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



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



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



     1.2 Accounting Terms. Under the Loan Documents (except as otherwise specified
herein), all accounting terms shall be interpreted, all accounting determinations shall be made,
and all financial statements shall be prepared, in accordance with GAAP applied on a basis
consistent with the most recent audited financial statements of Borrowers delivered to Agent before
the Closing Date and using the same inventory valuation method as used in such financial
statements, except for any change required or permitted by GAAP if Borrowers’ certified public
accountants concur in such change, the change is disclosed to Agent, and Section 10.2.13 is amended
in a manner satisfactory to Required Lenders to take into account the effects of the change.



     1.3 Uniform Commercial Code. As used herein, the following terms are defined in
accordance with the UCC in effect in the State of New York from time to time: “Chattel Paper,”
“Commercial Tort Claim,” “Deposit Account,” “Document,” “Equipment,” “General Intangibles,”
“Goods,” “Instrument,” “Investment Property,” “Letter-of-Credit Right” and “Supporting Obligation.”



     1.4 Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and
other words of similar import refer to this Agreement as a whole and not to any particular section,
paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the
computation of periods of time from a specified date to a later specified date, “from” means “from
and including,” “through” means “through and including,” and “to” and “until” each mean “to but
excluding.” The terms “including” and “include” shall mean “including, without limitation” and,
for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be
applicable to limit any provision. Section titles appear as a matter of convenience only and shall
not affect the interpretation of any Loan Document. All references to (a) laws or statutes include
all related rules, regulations, interpretations, amendments and successor provisions; (b) any
document, instrument or agreement include any amendments, waivers and other modifications,
extensions or renewals (to the extent permitted by the Loan Documents); (c) any section mean,
unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules
mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are
hereby incorporated by reference; (e) any Person include successors and assigns; (f) time of day
mean time of day at Agent’s notice address under Section 14.3.1; or (g) discretion of Agent,
Issuing Bank or any Lender mean the sole and absolute discretion of such Person. All calculations
of value, fundings of Loans, issuances of Letters of Credit and payments of Obligations shall be in
Dollars and, unless the context otherwise requires, all determinations (including calculations of
Borrowing Base and financial



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covenants) made from time to time under the Loan Documents shall be
made in light of the circumstances existing at such time. Borrowing Base calculations shall be
consistent with historical methods of valuation and calculation, and otherwise satisfactory to
Agent (and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of
establishing any alleged negligence, misconduct or lack of good faith by Agent, Issuing Bank or any
Lender under any Loan Documents. No
provision of any Loan Documents shall be construed against any party by reason of such party
having, or being deemed to have, drafted the provision. Whenever the phrase “to the best of
Borrowers’ knowledge” or words of similar import are used in any Loan Documents, it means actual
knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she
had engaged in good faith and diligent performance of his or her duties, including reasonably
specific inquiries of employees or agents and a good faith attempt to ascertain the matter to which
such phrase relates. Any Event of Default shall be deemed to be continuing until waived in writing
by the Agent and the requisite Lenders.




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



SECTION 2 CREDIT FACILITIES




     2.1 Revolver Commitment.



          2.1.1 Revolver Loans. Each Lender agrees, severally on a Pro Rata basis up to its
Revolver Commitment, on the terms set forth herein, to make Revolver Loans to Borrowers from time
to time through the Commitment Termination Date. The Revolver Loans may be repaid and reborrowed
as provided herein. In no event shall Lenders have any obligation to honor a request for a
Revolver Loan if the unpaid balance of Revolver Loans outstanding at such time (including the
requested Loan) would exceed the Borrowing Base.




          2.1.2 Revolver Notes. The Revolver Loans made by each Lender and interest accruing
thereon shall be evidenced by the records of Agent and such Lender. At the request of any Lender,
Borrowers shall deliver a Revolver Note to such Lender.




          2.1.3 Use of Proceeds. The proceeds of Revolver Loans shall be used by Borrowers
solely (a) to pay a portion of the Cost of Acquisition of the Valero Acquisition; (b) to pay fees
and transaction expenses associated with the Transactions; (c) to pay Obligations in accordance
with this Agreement; and (d) for working capital and other lawful corporate purposes of Borrowers.




          2.1.4 Voluntary Reduction or Termination of Revolver Commitments.




          (a) The Revolver Commitments shall terminate on the Revolver Termination Date, unless sooner
terminated in accordance with this Agreement. Upon at least 30 days prior written notice to Agent
at any time, Borrowers may, at their option, terminate the Revolver Commitments and this credit
facility. Any notice of termination given by Borrowers shall be irrevocable. On the termination
date, Borrowers shall make Full Payment of all Obligations.




          (b) Borrowers may permanently reduce the Revolver Commitments, on a Pro Rata basis for each
Lender, upon at least 30 days prior written notice to Agent, which notice shall specify the amount
of the reduction and shall be irrevocable once given. Each reduction shall be in a minimum amount
of $25,000,000, or an increment of $25,000,000 in excess thereof.




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          2.1.5 Overadvances. If the aggregate Revolver Loans exceed the Borrowing Base
(“Overadvance”) or the aggregate Revolver Commitments at any time, the excess amount shall
be payable by Borrowers on demand by Agent, but all such Revolver Loans shall nevertheless
constitute Obligations secured by the Collateral and entitled to all benefits of the Loan
Documents. Unless its authority has been revoked in writing by Required Lenders, Agent may require
Lenders to honor requests for Overadvance Loans and to forbear from requiring Borrowers to cure an
Overadvance, (a) when no other Event of
Default is known to Agent, as long as (i) the Overadvance does not continue for more than 30
consecutive days (and no Overadvance may exist for at least five consecutive days thereafter before
further Overadvance Loans pursuant to this sentence are required), and (ii) the Overadvance is not
known by Agent to exceed 5% of the Borrowing Base; or (b) regardless of whether an Event of Default
exists, if Agent discovers an Overadvance not previously known by it to exist, as long as from the
date of such discovery the Overadvance (i) is not increased to more than 5% of the Borrowing Base,
and (ii) does not continue for more than 30 consecutive days. In no event shall Overadvance Loans
be required that would cause the outstanding Revolver Loans and LC Obligations to exceed the
aggregate Revolver Commitments. Any funding of an Overadvance Loan or sufferance of an Overadvance
shall not constitute a waiver by Agent or Lenders of the Event of Default caused thereby. In no
event shall any Borrower or other Obligor be deemed a beneficiary of this Section nor authorized to
enforce any of its terms.




          2.1.6 Protective Advances. Agent shall be authorized, in its discretion, at any time
that any conditions in Section 6 are not satisfied, and without regard to the aggregate
Commitments, to make Base Rate Loans (“Protective Advances”) (a) up to an aggregate amount
not to exceed, when aggregated with any Overadvances existing under Section 2.1.5 above, 7% of the
Revolver Commitments, if Agent deems such Loans necessary or desirable to preserve or protect
Collateral, or to enhance the collectibility or repayment of Obligations; or (b) to pay any other
amounts chargeable to Obligors under any Loan Documents, including costs, fees and expenses. Each
Lender shall participate in each Protective Advance on a Pro Rata basis. Required Lenders may at
any time revoke Agent’s authority to make further Protective Advances by written notice to Agent.
Absent such revocation, Agent’s determination that funding of a Protective Advance is appropriate
shall be conclusive.




     2.2 Increase in Revolving Credit Facility.



          2.2.1 Request for Increase. So long as there exists no Default and upon notice to
Agent (which shall promptly notify Lenders), Borrower Agent may from time to time, request an
increase in the Revolving Credit Facility by an amount (for all such requests) not exceeding
$100,000,000; provided, that any such request for an increase shall be in a minimum amount of
$25,000,000 and increments of $25,000,000 in excess thereof. At the time of sending such notice,
Borrower Agent (in consultation with 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 Lenders).




          2.2.2 Lender Elections to Increase. Each Lender shall have the right, but shall be
under no obligation, to participate in any requested increase in the Revolving Credit Facility
under this Section 2.2. Each Lender shall notify Agent within the time period specified in
accordance with Section 2.2.1 whether or not it agrees to increase its Revolver 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 Revolver Commitment.




          2.2.3 Notification by Agent; Additional Lenders. Agent shall notify Borrower Agent
and each Lender of Lenders’ responses to each request made hereunder. To achieve the full amount
of a requested increase, and subject to the approval of Agent and Issuing Bank (which approvals




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shall not be unreasonably withheld), Borrowers may also invite additional Eligible Assignees to
become Lenders pursuant to a joinder agreement in form and substance satisfactory to Agent and its
counsel.




          2.2.4 Closing Date and Allocations. If the Revolving Credit Facility is increased in
accordance with this Section, Agent and Borrowers shall determine the effective date (the
“Revolver Increase Closing Date”) and the final allocation of such increase. Agent shall
promptly notify Borrowers and Lenders of the final allocation of such increase and the Revolver
Increase Closing Date. Upon the
satisfaction of the conditions precedent set forth in Section 2.2.5 on the proposed Revolver
Increase Closing Date and, with respect to any new Lenders participating in the proposed increase,
delivery to Agent by such Lenders of a joinder agreement in form and substance satisfactory to
Agent and its counsel and a processing fee of $3,500 (unless otherwise agreed by Agent in its
discretion), the Revolving Credit Facility shall be so increased, Schedule 1.1 shall be deemed
automatically amended and replaced to reflect any new Lenders and such increase, and the applicable
Lenders, Agent and Borrowers shall make appropriate arrangements for issuance of replacement and/or
new Notes, as applicable.




          2.2.5 Conditions to Effectiveness of Increase. As a condition precedent to such
increase, Borrower Agent shall deliver to Agent a certificate of each Obligor dated as of the
Revolver Increase Closing Date signed by a Senior Officer of such Obligor (a) certifying and
attaching the resolutions adopted by such Obligor approving or consenting to such increase, and
(b) in the case of the Borrowers, certifying that, before and after giving effect to such increase,
(i) the representations and warranties contained in Section 9 and in the other Loan Documents are
true and correct in all material respects on and as of the Revolver Increase Closing 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 2.2.5, the representations and warranties contained in Section
9.1.5 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a)
(i) and (ii), respectively, of Section 10.1.4, and (ii) no Default or Event of Default exists.
Borrowers shall prepay any Revolver Loans outstanding on the Revolver Increase Closing Date (and
pay any additional amounts required pursuant to Section 3.9) to the extent necessary to keep the
outstanding Revolver Loans ratable with any revised change in the Pro Rata interests of Lenders
arising from any nonratable increase in the Revolver Commitments under this Section.




          2.2.6 Conflicting Provisions. This Section shall supersede any provisions in Sections
12.5 or 14.1 to the contrary.




     2.3 Letter of Credit Facility.



          2.3.1 Issuance of Letters of Credit. Issuing Bank agrees to issue Letters of Credit
from time to time until 30 days prior to the Revolver Termination Date (or until the Commitment
Termination Date, if earlier), on the terms set forth herein, including the following:




          (a) Each Borrower acknowledges that Issuing Bank’s willingness to issue any Letter of Credit
is conditioned upon Issuing Bank’s receipt of a LC Application with respect to the requested Letter
of Credit, as well as such other instruments and agreements as Issuing Bank may customarily require
for issuance of a letter of credit of similar type and amount. Issuing Bank shall have no
obligation to issue any Letter of Credit unless (i) Issuing Bank receives a LC Request and LC
Application at least three Business Days prior to the requested date of issuance; and (ii) each LC
Condition is satisfied. If Issuing Bank receives written notice from a Lender at least five
Business Days before issuance of a Letter of Credit that any LC Condition has not been satisfied,
Issuing Bank shall have no obligation to issue the requested Letter of Credit (or any other) until
such notice is withdrawn in writing by that Lender or until Required Lenders have waived such
condition in accordance with this Agreement. Prior to receipt of any such notice, Issuing Bank
shall not be deemed to have knowledge of any failure of LC Conditions.




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          (b) Letters of Credit may be requested by the Borrower Agent or a Borrower only (i) to support
obligations of such Borrower incurred in the Ordinary Course of Business; or (ii) for other
purposes as Agent and Lenders may approve from time to time in writing. The renewal or extension
of any Letter of Credit shall be treated as the issuance of a new Letter of Credit, except that
delivery of a new LC Application shall be required at the discretion of Issuing Bank.




          (c) Borrowers assume all risks of the acts, omissions or misuses of any Letter of Credit by
the beneficiary. In connection with issuance of any Letter of Credit, none of Agent, Issuing
Bank or any Lender shall be responsible for the existence, character, quality, quantity,
condition, packing, value or delivery of any goods purported to be represented by any Documents;
any differences or variation in the character, quality, quantity, condition, packing, value or
delivery of any goods from that expressed in any Documents; the form, validity, sufficiency,
accuracy, genuineness or legal effect of any Documents or of any endorsements thereon; the time,
place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or
failure to ship, any goods referred to in a Letter of Credit or Documents; any deviation from
instructions, delay, default or fraud by any shipper or other Person in connection with any goods,
shipment or delivery; any breach of contract between a shipper or vendor and a Borrower; errors,
omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical
terms; the misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or any
consequences arising from causes beyond the control of Issuing Bank, Agent or any Lender, including
any act or omission of a Governmental Authority. The rights and remedies of Issuing Bank under the
Loan Documents shall be cumulative. Issuing Bank shall be fully subrogated to the rights and
remedies of each beneficiary whose claims against Borrowers are discharged with proceeds of any
Letter of Credit.




          (d) In connection with its administration of and enforcement of rights or remedies under any
Letters of Credit or LC Documents, Issuing Bank shall be entitled to act, and shall be fully
protected in acting, upon any certification, documentation or communication in whatever form
believed in good faith by Issuing Bank to be genuine and correct and to have been signed, sent or
made by a proper Person. Issuing Bank may consult with and employ legal counsel, accountants and
other experts to advise it concerning its obligations, rights and remedies, and shall be entitled
to act upon, and shall be fully protected in any action taken in good faith reliance upon, any
advice given by such experts. Issuing Bank may employ agents and attorneys-in-fact in connection
with any matter relating to Letters of Credit or LC Documents, and shall not be liable for the
negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.




          2.3.2 Reimbursement; Participations.




          (a) If Issuing Bank honors any request for payment under a Letter of Credit, Borrowers shall
pay to Issuing Bank, on the same day (“Reimbursement Date”), the amount paid by Issuing
Bank under such Letter of Credit, together with interest at the interest rate for Base Rate Loans
from the Reimbursement Date until payment by Borrowers. The obligation of Borrowers to reimburse
Issuing Bank for any payment made under a Letter of Credit shall be absolute, unconditional,
irrevocable, and joint and several, and shall be paid without regard to any lack of validity or
enforceability of any Letter of Credit or the existence of any claim, setoff, defense or other
right that Borrowers may have at any time against the beneficiary. Whether or not Borrower Agent
submits a Notice of Borrowing, Borrowers shall be deemed to have requested a Borrowing of Base Rate
Loans in an amount necessary to pay all amounts due Issuing Bank on any Reimbursement Date and each
Lender agrees to fund its Pro Rata share of such Borrowing whether or not the Commitments have
terminated, an Overadvance exists or is created thereby, or the conditions in Section 6 are
satisfied, and Agent shall apply such Base Rate Loans and application thereof shall constitute
payment of amounts owing by Borrowers pursuant to this clause (a).




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          (b) Upon issuance of a Letter of Credit, each Lender shall be deemed to have irrevocably and
unconditionally purchased from Issuing Bank, without recourse or warranty, an undivided Pro Rata
interest and participation in all LC Obligations relating to the Letter of Credit. If Issuing Bank
makes any payment under a Letter of Credit and Borrowers do not reimburse such payment on the
Reimbursement Date, Agent shall promptly notify Lenders and each Lender shall promptly (within one
Business Day) and unconditionally pay to Agent, for the benefit of Issuing Bank, the Lender’s Pro
Rata share of such payment. Upon request by a Lender, Issuing Bank shall furnish copies of any
Letters of Credit and LC Documents in its possession at such time.




          (c) The obligation of each Lender to make payments to Agent for the account of Issuing Bank in
connection with Issuing Bank’s payment under a Letter of Credit shall be absolute, unconditional
and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever,
and shall be made in accordance with this Agreement under all circumstances, irrespective of any
lack of validity or unenforceability of any Loan Documents; any draft, certificate or other
document presented under a Letter of Credit having been determined to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any
respect; or the existence of any setoff or defense that any Obligor may have with respect to any
Obligations. Issuing Bank does not assume any responsibility for any failure or delay in
performance or any breach by any Borrower or other Person of any obligations under any LC
Documents. Issuing Bank does not make to Lenders any express or implied warranty, representation
or guaranty with respect to the Collateral, LC Documents or any Obligor. Issuing Bank shall not be
responsible to any Lender for any recitals, statements, information, representations or warranties
contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any
LC Documents; the validity, genuineness, enforceability, collectibility, value or sufficiency of
any Collateral or the perfection of any Lien therein; or the assets, liabilities, financial
condition, results of operations, business, creditworthiness or legal status of any Obligor.




          (d) No Issuing Bank Indemnitee shall be liable to any Lender or other Person for any action
taken or omitted to be taken in connection with any LC Documents except as a result of its actual
gross negligence or willful misconduct. Issuing Bank shall not have any liability to any Lender if
Issuing Bank refrains from any action under any Letter of Credit or LC Documents until it receives
written instructions from Required Lenders.




          2.3.3 Cash Collateral. If any LC Obligations, whether or not then due or payable,
shall for any reason be outstanding at any time (a) that an Event of Default exists, (b) that
Availability is less than zero, (c) after the Commitment Termination Date, or (d) within 20
Business Days prior to the Revolver Termination Date, then Borrowers shall, at Issuing Bank’s or
Agent’s request, Cash Collateralize the stated amount of all outstanding Letters of Credit and pay
to Issuing Bank the amount of all other LC Obligations. If Borrowers fail to provide Cash
Collateral as required herein, Lenders may (and shall upon direction of Agent) advance, as Revolver
Loans, the amount of the Cash Collateral required (whether or not the Commitments have terminated,
an Overadvance exists or the conditions in Section 6 are satisfied).




SECTION 3 INTEREST, FEES AND CHARGES




     3.1 Interest.



          3.1.1 Rates and Payment of Interest.




          (a) The Obligations (other than Bank Product Debt) shall bear interest (i) if a Base Rate
Loan, at the Base Rate in effect from time to time, plus the Applicable Margin; (ii) if a LIBOR
Loan, at LIBOR for the applicable Interest Period, plus the Applicable Margin; and (iii) if any
other Obligation (other than Bank Product Debt) (including, to the extent permitted by law,
interest not paid when due




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pursuant to the terms hereof), at the Base Rate in effect from time to
time, plus the Applicable Margin for Base Rate Loans. Interest shall accrue from the date the Loan
is advanced or the Obligation is incurred or payable, until paid in full. If a Loan is repaid on
the same day made, one day’s interest shall accrue.




          (b) During an Insolvency Proceeding with respect to any Borrower, or during any other Event of
Default if Agent or Required Lenders in their discretion so elect, Obligations (other than Bank
Product Debt) shall bear interest at the Default Rate (whether before or after any judgment). Each
Borrower acknowledges that the cost and expense to Agent and Lenders due to an Event of Default are
difficult to ascertain and that the Default Rate is a fair and reasonable estimate to compensate
Agent and Lenders for such additional costs and expenses.




          (c) Interest accrued on the Loans shall be due and payable in arrears, (i) on the first day of
each month; (ii) on any date of prepayment, with respect to the principal amount of Loans being
prepaid; and (iii) on the Commitment Termination Date. Interest accrued on any other Obligations
(other than Bank Product Debt) shall be due and payable as provided in the Loan Documents and, if
no payment date is specified, shall be due and payable on demand. Notwithstanding the foregoing,
interest accrued at the Default Rate shall be due and payable on demand.




          3.1.2 Application of LIBOR to Outstanding Loans.




          (a) Borrowers may on any Business Day, subject to delivery of a Notice of
Conversion/Continuation, elect to convert any portion of the Base Rate Loans to, or to continue any
LIBOR Loan at the end of its Interest Period as, a LIBOR Loan. During any Default or Event of
Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan may be
made, converted or continued as a LIBOR Loan.




          (b) Whenever Borrowers desire to convert or continue Loans as LIBOR Loans, Borrower Agent
shall give Agent a Notice of Conversion/Continuation, no later than 11:00 a.m. at least three
Business Days before the requested conversion or continuation date. Promptly after receiving any
such notice, Agent shall notify each Lender thereof. Each Notice of Conversion/Continuation shall
be irrevocable, and shall specify the amount of Loans to be converted or continued, the conversion
or continuation date (which shall be a Business Day), and the duration of the Interest Period
(which shall be deemed to be 30 days if not specified). If, upon the expiration of any Interest
Period in respect of any LIBOR Loans, Borrowers shall have failed to deliver a Notice of
Conversion/Continuation, they shall be deemed to have elected to convert such Loans into Base Rate
Loans.




          3.1.3 Interest Periods. In connection with the making, conversion or continuation of
any LIBOR Loans, Borrowers shall select an interest period (“Interest Period”) to apply,
which interest period shall be 30, 60, or 90 days; provided, that:




          (a) the Interest Period shall commence on the date the Loan is made or continued as, or
converted into, a LIBOR Loan, and shall expire on the numerically corresponding day in the calendar
month at its end;




          (b) if any Interest Period commences on a day for which there is no corresponding day in the
calendar month at its end or if such corresponding day falls after the last Business Day of such
month, then the Interest Period shall expire on the last Business Day of such month; and if any
Interest Period would expire on a day that is not a Business Day, the period shall expire on the
next Business Day; and




          (c) no Interest Period shall extend beyond the Revolver Termination Date.




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          3.1.4 Interest Rate Not Ascertainable. If Agent shall determine that on any date for
determining LIBOR, due to any circumstance affecting the London interbank market, adequate and fair
means do not exist for ascertaining such rate on the basis provided herein, then Agent shall
immediately notify Borrowers of such determination. Until Agent notifies Borrowers that such
circumstance no longer exists, the obligation of Lenders to make LIBOR Loans shall be suspended,
and no further Loans may be converted into or continued as LIBOR Loans.




     3.2 Fees.



          3.2.1 Unused Line Fee. On the first day of each month and on the Termination Date the
Borrowers agree to pay to the Agent, for the account of the Lenders in accordance with their
respective Pro Rata shares, an unused line fee (the “Unused Line Fee”) equal to the Applicable
Margin
therefor multiplied by the amount by which the Revolver Commitments exceed the sum of the
average daily outstanding amount of Revolving Loans and the average daily undrawn face amount of
outstanding Letters of Credit, during the immediately preceding month (or shorter period if
calculated for the first month after the Closing Date or on the Termination Date). The Unused Line
Fee shall be computed on the basis of a 360-day year for the actual number of days elapsed. All
principal payments received by the Agent shall be deemed to be credited to the Loan Account
immediately upon receipt for purposes of calculating the Unused Line Fee pursuant to this
Section 3.2.




          3.2.2 LC Facility Fees. The Borrowers agree to pay (a) to the Agent, for the account
of the Lenders, in accordance with their respective Pro Rata shares, for each Letter of Credit, a
fee (the “Letter of Credit Fee”) equal to the Applicable Margin per annum, multiplied by the
average daily stated amount of each such Letter of Credit; and (b) to the Agent for the benefit of
the Letter of Credit Issuer a customary “fronting fee” of one tenth of one percent (0.10%) of the
stated amount of each Letter of Credit, and to the Letter of Credit Issuer, all reasonable
out-of-pocket costs, fees and expenses incurred by the Letter of Credit Issuer in connection with
the application for, processing of, issuance of, or amendment to any Letter of Credit. The Letter
of Credit Fee shall be payable monthly in arrears on the first day of each calendar month following
any month in which a Letter of Credit is outstanding and on the Revolving Credit Termination Date.
The Letter of Credit Fee shall be computed on the basis of a 360-day year for the actual number of
days elapsed. During any period when the Default Rate is applicable pursuant to Section 3.1.1(b),
the fee payable under clause (a) of this Section 3.2.2 shall be increased by 2% per annum.




          3.2.3 Agent Fees. In consideration of Agent’s syndication of the Commitments and
service as Agent hereunder, Borrowers shall pay to Agent, for its own account, the fees described
in the Fee Letter..




     3.3 Computation of Interest, Fees, Yield Protection. All interest, as well as fees
and other charges calculated on a per annum basis, shall be computed for the actual days elapsed,
based on a year of 360 days. Each determination by Agent of any interest, fees or interest rate
hereunder shall be final, conclusive and binding for all purposes, absent manifest error. All fees
shall be fully earned when due and shall not be subject to rebate, refund or proration. All fees
payable under Section 3.2 are compensation for services and are not, and shall not be deemed to be,
interest or any other charge for the use, forbearance or detention of money. A certificate as to
amounts payable by Borrowers under Section 3.4, 3.6, 3.7, 3.9 or 5.9, submitted to Borrower Agent
by Agent or the affected Lender, as applicable, shall be final, conclusive and binding for all
purposes, absent manifest error, and Borrowers shall pay such amounts to the appropriate party
within 10 days following receipt of the certificate.



     3.4 Reimbursement Obligations. Borrowers shall reimburse Agent for all Extraordinary
Expenses. Borrowers shall also reimburse Agent for all reasonable legal, accounting, appraisal,
consulting, and other fees, costs and expenses incurred by it in connection with (a) negotiation
and



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preparation of any Loan Documents, including any amendment or other modification thereof;
(b) administration of and actions relating to any Collateral, Loan Documents and transactions
contemplated thereby, including any actions taken to perfect or maintain priority of Agent’s Liens
on any Collateral, to maintain any insurance required hereunder or to verify Collateral; and
(c) subject to the limits of Section 10.1.1(b), each inspection, audit or appraisal with respect to
any Obligor or Collateral, whether prepared by Agent’s Personnel or a third party. All legal,
accounting and consulting fees shall be charged to Borrowers by Agent’s professionals at their full
hourly rates, regardless of any reduced or alternative fee billing arrangements that Agent, any
Lender or any of their Affiliates may have with such professionals with respect to this or any
other transaction. If, for any reason (including inaccurate reporting on financial statements or a
Compliance Certificate), it is determined that a higher Applicable Margin should have applied to a
period than was actually applied, then the proper margin shall be applied retroactively and
Borrowers shall immediately pay to Agent, for the Pro Rata benefit of Lenders, an amount equal to
the difference between the amount of interest and fees that would have accrued using the
proper margin and the amount actually paid. All amounts payable by Borrowers under this
Section shall be due on demand.




     3.5 Illegality. If any Lender determines that any Applicable 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 LIBOR Loans, or to determine or charge
interest rates based upon LIBOR, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to Agent, any obligation of such Lender to
make or continue LIBOR Loans or to convert Base Rate Loans to LIBOR Loans shall be suspended until
such Lender notifies Agent that the circumstances giving rise to such determination no longer
exist. Upon delivery of such notice, Borrowers shall prepay or, if applicable, convert all LIBOR
Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such LIBOR Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such LIBOR Loans. Upon any such prepayment or
conversion, Borrowers shall also pay accrued interest on the amount so prepaid or converted.



     3.6 Inability to Determine Rates. If Required Lenders notify Agent for any reason in
connection with a request for a Borrowing of, or conversion to or continuation of, a LIBOR Loan
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 Loan, (b) adequate and reasonable means do
not exist for determining LIBOR for the requested Interest Period, or (c) LIBOR for the requested
Interest Period does not adequately and fairly reflect the cost to such Lenders of funding such
Loan, then Agent will promptly so notify Borrower Agent and each Lender. Thereafter, the
obligation of Lenders to make or maintain LIBOR Loans shall be suspended until Agent (upon
instruction by Required Lenders) revokes such notice. Upon receipt of such notice, Borrower Agent
may revoke any pending request for a Borrowing of, conversion to or continuation of a LIBOR Loan
or, failing that, will be deemed to have submitted a request for a Base Rate Loan.



     3.7 Increased Costs; Capital Adequacy.



          3.7.1 Change in Law. If any Change in Law shall:




          (a) 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 reflected in LIBOR) or
Issuing Bank;




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          (b) subject any Lender or Issuing Bank to any Tax with respect to any Loan, Loan Document,
Letter of Credit or participation in LC Obligations, or change the basis of taxation of payments to
such Lender or Issuing Bank in respect thereof (except for Indemnified Taxes or Other Taxes covered
by Section 5.9 and the imposition of, or any change in the rate of, any Excluded Tax payable by
such Lender or Issuing Bank); or




          (c) impose on any Lender or Issuing Bank or the London interbank market any other condition,
cost or expense affecting any Loan, Loan Document, Letter of Credit or participation in LC
Obligations;




and the result thereof shall be to increase the cost to such Lender of making or maintaining any
LIBOR Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to
such Lender or Issuing Bank 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 Issuing Bank hereunder (whether of
principal, interest or any other
amount) then, upon request of such Lender or Issuing Bank, Borrowers will pay to such Lender or
Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or
Issuing Bank, as applicable, for such additional costs incurred or reduction suffered.




          3.7.2 Capital Adequacy. If any Lender or Issuing Bank determines that any Change in
Law affecting such Lender or Issuing Bank or any Lending Office of such Lender or such Lender’s or
Issuing Bank’s holding company, if any, regarding capital requirements has or would have the effect
of reducing the rate of return on such Lender’s, Issuing Bank’s or holding company’s capital as a
consequence of this Agreement, or such Lender’s or Issuing Bank’s Commitments, Loans, Letters of
Credit or participations in LC Obligations, to a level below that which such Lender, Issuing Bank
or holding company could have achieved but for such Change in Law (taking into consideration such
Lender’s, Issuing Bank’s and holding company’s policies with respect to capital adequacy), then
from time to time Borrowers will pay to such Lender or Issuing Bank, as the case may be, such
additional amount or amounts as will compensate it or its holding company for any such reduction
suffered.




          3.7.3 Compensation. Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of its right to demand
such compensation, but Borrowers shall not be required to compensate a Lender or Issuing Bank for
any increased costs incurred or reductions suffered more than nine months prior to the date that
the Lender or Issuing Bank notifies Borrower Agent of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or Issuing Bank’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 nine-month period referred to above shall be extended to
include the period of retroactive effect thereof).




     3.8 Mitigation. If any Lender gives a notice under Section 3.5 or requests
compensation under Section 3.7, or if Borrowers are required to pay additional amounts with respect
to a Lender under Section 5.9, then such Lender shall use reasonable efforts to designate a
different Lending Office or to assign its rights and obligations hereunder to another of its
offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment
(a) would eliminate the need for such notice or reduce amounts payable or to be withheld in the
future, as applicable; and (b) in each case, would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender. Borrowers agree to pay all
reasonable costs and expenses incurred by any Lender in connection with any such designation or
assignment.



     3.9 Funding Losses. If for any reason (other than default by a Lender) (a) any
Borrowing of, or conversion to or continuation of, a LIBOR Loan does not occur on the date
specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not
withdrawn), (b) any



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repayment or conversion of a LIBOR Loan occurs on a day other than the end of
its Interest Period, or (c) Borrowers fail to repay a LIBOR Loan when required hereunder, then
Borrowers shall pay to Agent its customary administrative charge and to each Lender all losses and
expenses that it sustains as a consequence thereof, including loss of anticipated profits and any
loss or expense arising from liquidation or redeployment of funds or from fees payable to terminate
deposits of matching funds. Lenders shall not be required to purchase Dollar deposits in the
London interbank market or any other offshore Dollar market to fund any LIBOR Loan, but the
provisions hereof shall be deemed to apply as if each Lender had purchased such deposits to fund
its LIBOR Loans.




     3.10 Maximum Interest. 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 (“maximum rate”). If
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 Obligations or, if it exceeds such unpaid
principal, refunded to Borrowers. In determining whether the interest contracted for, charged or
received by 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.



SECTION 4 LOAN ADMINISTRATION



     4.1 Manner of Borrowing and Funding Revolver Loans.



          4.1.1 Notice of Borrowing.




          (a) Whenever Borrowers desire funding of a Borrowing of Revolver Loans, Borrower Agent shall
give Agent a Notice of Borrowing. Such notice must be received by Agent no later than 11:00 a.m.
(i) on the Business Day of the requested funding date, in the case of Base Rate Loans, and (ii) at
least two Business Days prior to the requested funding date, in the case of LIBOR Loans. Notices
received after 11:00 a.m. shall be deemed received on the next Business Day. Each Notice of
Borrowing shall be irrevocable and shall specify (A) the amount of the Borrowing, (B) the requested
funding date (which must be a Business Day), (C) whether the Borrowing is to be made as Base Rate
Loans or LIBOR Loans (provided if no such specification is made, a Base Rate Loan shall be deemed
to have been specified), and (D) in the case of LIBOR Loans, the duration of the applicable
Interest Period (which shall be deemed to be 30 days if not specified).




          (b) Unless payment is otherwise timely made by Borrowers, the becoming due of any Obligations
(whether principal, interest, fees or other charges, including Extraordinary Expenses, LC
Obligations, Cash Collateral and Bank Product Debt) shall be deemed to be a request for Base Rate
Loans on the due date, in the amount of such Obligations and the application of such Loans to such
Obligations shall be deemed a payment by the Borrowers hereunder. The proceeds of such Revolver
Loans shall be disbursed as direct payment of the relevant Obligation. In addition, Agent may, at
its option, charge such Obligations against any operating, investment or other account of a
Borrower maintained with Agent or any of its Affiliates.




          (c) If Borrowers establish a controlled disbursement account with Agent or any Affiliate of
Agent, then the presentation for payment of any check or other item of payment drawn on such
account at a time when there are insufficient funds to cover it shall be deemed to be a request for
Base Rate Loans on the date of such presentation, in the amount of the check and items presented
for payment. The proceeds of such Revolver Loans may be disbursed directly to the controlled
disbursement account or other appropriate account.




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          4.1.2 Fundings by Lenders. Each Lender shall timely honor its Revolver Commitment by
funding its Pro Rata share of each Borrowing of Revolver Loans that is properly requested
hereunder. Except for Borrowings to be made as Swingline Loans, Agent shall endeavor to notify
Lenders of each Notice of Borrowing (or deemed request for a Borrowing) by 12:00 noon on the
proposed funding date for Base Rate Loans or by 3:00 p.m. at least two Business Days before any
proposed funding of LIBOR Loans. Each Lender shall fund to Agent such Lender’s Pro Rata share of
the Borrowing to the account specified by Agent in immediately available funds not later than 2:00
p.m. on the requested funding date, unless Agent’s notice is received after the times provided
above, in which event Lender shall fund its Pro Rata share by 11:00 a.m. on the next Business Day.
Subject to its receipt of such amounts from Lenders, Agent shall disburse the proceeds of the
Revolver Loans as directed by Borrower Agent. Unless Agent shall have received (in sufficient time
to act) written notice from a Lender that it does not intend to fund its Pro Rata share of a
Borrowing, Agent may assume that such Lender has deposited or promptly will deposit its share with
Agent, and Agent may disburse a corresponding amount to Borrowers. If a Lender’s share of any
Borrowing is not in fact received by Agent, then Borrowers agree to repay to Agent on demand the
amount of such share, together with interest thereon from the date disbursed until repaid, at the
rate applicable to such Borrowing.




          4.1.3 Swingline Loans; Settlement.




          (a) Agent may, but shall not be obligated to, advance Swingline Loans to Borrowers, up to an
aggregate outstanding amount of 10% of the aggregate Revolving Commitments, unless the funding is
specifically required to be made by all Lenders hereunder. Each Swingline Loan shall constitute a
Revolver Loan for all purposes, except that payments thereon shall be made to Agent for its own
account. The obligation of Borrowers to repay Swingline Loans shall be evidenced by the records of
Agent and need not be evidenced by any promissory note.




          (b) To facilitate administration of the Revolver Loans, Lenders and Agent agree (which
agreement is solely among them, and not for the benefit of or enforceable by any Borrower) that
settlement among them with respect to Swingline Loans and other Revolver Loans may take place
periodically on a date determined from time to time by Agent, which shall occur at least once each
week. On each settlement date, settlement shall be made with each Lender in accordance with the
Settlement Report delivered by Agent to Lenders. Between settlement dates, Agent may in its
discretion apply payments on Revolver Loans to Swingline Loans, regardless of any designation by
Borrower or any provision herein to the contrary. Each Lender’s obligation to make settlements
with Agent is absolute and unconditional, without offset, counterclaim or other defense, and
whether or not the Commitments have terminated, an Overadvance exists or the conditions in Section
6 are satisfied. If, due to an Insolvency Proceeding with respect to a Borrower or otherwise, any
Swingline Loan may not be settled among Lenders hereunder, then each Lender shall be deemed to have
purchased from Agent a Pro Rata participation in each unpaid Swingline Loan and shall transfer the
amount of such participation to Agent, in immediately available funds, within one Business Day
after Agent’s request therefor.




          4.1.4 Notices. Each Borrower authorizes Agent and Lenders to extend, convert or
continue Loans, effect selections of interest rates, and transfer funds to or on behalf of
Borrowers based on telephonic or e-mailed instructions. Borrowers shall confirm each such request
by prompt delivery to Agent of a Notice of Borrowing or Notice of Conversion/Continuation, if
applicable, but if it differs in any material respect from the action taken by Agent or Lenders,
the records of Agent and Lenders shall govern. Neither Agent nor any Lender shall have any
liability for any loss suffered by a Borrower as a result of Agent or any Lender acting upon its
understanding of telephonic or e-mailed instructions from a person reasonably believed by Agent or
any Lender to be a person authorized to give such instructions on a Borrower’s behalf.





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     4.2 Defaulting Lender. If a Lender fails to make any payment to Agent that is
required hereunder, Agent may (but shall not be required to), in its discretion, retain payments
that would otherwise be made to such defaulting Lender hereunder, apply the payments to such
Lender’s defaulted obligations or readvance the funds to Borrowers in accordance with this
Agreement. The failure of any Lender to fund a Loan or to make a payment in respect of a LC
Obligation shall not relieve any other Lender of its obligations hereunder, and no Lender shall be
responsible for default by another Lender. Lenders and Agent agree (which agreement is solely
among them, and not for the benefit of or enforceable by any Borrower) that, solely for purposes of
determining a defaulting Lender’s right to vote on matters relating to the Loan Documents and to
share in payments, fees and Collateral proceeds, a defaulting Lender shall not be deemed to be a
“Lender” until all its defaulted obligations have been cured.



     4.3 Number and Amount of LIBOR Loans; Determination of Rate. For ease of
administration, all LIBOR Revolver Loans having the same length and beginning date of their
Interest Periods shall be aggregated together, and such Borrowings shall be allocated among Lenders
on a Pro Rata basis. No more than five (5) Borrowings of LIBOR Loans may be outstanding at any
time, and each Borrowing of LIBOR Loans when made shall be in a minimum amount of $1,000,000, or an
increment of $1,000,000 in excess thereof. Upon determining LIBOR for any Interest Period
requested by Borrowers, Agent shall promptly notify Borrowers thereof by telephone or
electronically and, if requested by Borrowers, shall confirm any telephonic notice in writing.



     4.4 Borrower Agent. Each Borrower hereby designates the Company (“Borrower
Agent”) as its representative and agent for all purposes under the Loan Documents, including
requests for Loans and Letters of Credit, designation of interest rates, delivery or receipt of
communications, preparation and delivery of Borrowing Base and financial reports, receipt and
payment of Obligations, requests for waivers, amendments or other accommodations, actions under the
Loan Documents (including in respect of compliance with covenants), and all other dealings with
Agent, Issuing Bank or any Lender. Borrower Agent hereby accepts such appointment. Agent and
Lenders shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or
communication (including any notice of borrowing) delivered, or reasonably believed to be
delivered, by Borrower Agent on behalf of any Borrower. Agent and Lenders may give any notice or
communication with a Borrower hereunder to Borrower Agent on behalf of such Borrower. Each of
Agent, Issuing Bank and Lenders shall have the right, in its discretion, to deal exclusively with
Borrower Agent for any or all purposes under the Loan Documents. Each Borrower agrees that any
notice, election, communication, representation, agreement or undertaking made on its behalf by
Borrower Agent shall be binding upon and enforceable against it.



     4.5 One Obligation. The Loans, LC Obligations and other Obligations shall constitute
one general obligation of Borrowers and (unless otherwise expressly provided in any Loan
Document) shall be secured by Agent’s Lien upon all Collateral; provided, that Agent and
each Lender shall be deemed to be a creditor of, and the holder of a separate claim against, each
Borrower to the extent of any Obligations jointly or severally owed by such Borrower.



     4.6 Effect of Termination. On the effective date of any termination of the
Commitments, all Obligations shall be immediately due and payable, and any Lender may terminate its
and its Affiliates’ Bank Products (including, only with the consent of Agent, any Cash Management
Services). All undertakings of Borrowers contained in the Loan Documents shall survive any
termination, and Agent shall retain its Liens in the Collateral and all of its rights and remedies
under the Loan Documents until Full Payment of the Obligations. Notwithstanding Full Payment of
the Obligations, Agent shall not be required to terminate its Liens in any Collateral unless, with
respect to any damages Agent may incur as a result of the dishonor or return of Payment Items
applied to Obligations, Agent receives (a) a written agreement, executed by Borrowers and any
Person whose advances are used in whole or in part to satisfy the Obligations, indemnifying Agent
and Lenders from any such damages; or (b) such Cash Collateral as Agent, in its discretion, deems
necessary to protect against any such damages. The provisions of Sections



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2.3, 3.4, 3.6, 3.7, 3.9, 5.5, 5.9, 12, 14.2 and this Section, and the obligation of each
Obligor and Lender with respect to each indemnity given by it in any Loan Document, shall survive
Full Payment of the Obligations and any release relating to this credit facility.




SECTION 5 PAYMENTS




     5.1 General Payment Provisions. All payments of Obligations shall be made in Dollars,
without offset, counterclaim or defense of any kind, free of (and without deduction for) any Taxes,
and in immediately available funds, not later than 12:00 noon on the due date. Any payment after
such time shall be deemed made on the next Business Day. If any payment under the Loan Documents
shall be stated to be due on a day other than a Business Day, the due date shall be extended to the
next Business Day and such extension of time shall be included in any computation of interest and
fees. Any payment of a LIBOR Loan prior to the end of its Interest Period shall be accompanied by
all amounts due under Section 3.9. Any prepayment of Loans shall be applied first to Base Rate
Loans and then to LIBOR Loans; provided, that as long as no Event of Default exists,
prepayments of LIBOR Loans may, at the option of Borrowers and Agent, be held by Agent as Cash
Collateral and applied to such Loans at the end of their Interest Periods.



     5.2 Repayment of Revolver Loans. Revolver Loans shall be due and payable in full on
the Revolver Termination Date, unless payment is sooner required hereunder. Revolver Loans may be
prepaid from time to time, without penalty or premium. Notwithstanding anything herein to the
contrary, if an Overadvance exists, Borrowers shall, on the sooner of Agent’s demand or the first
Business Day after any Borrower has knowledge thereof, repay the outstanding Revolver Loans in an
amount sufficient to reduce the principal balance of Revolver Loans to the Borrowing Base.



     5.3 Mandatory Prepayment of Revolving Loans.



          5.3.1 Asset Dispositions. If any Asset Disposition not made in the Ordinary Course of
Business includes the disposition of Accounts or Inventory, then Net Proceeds equal to the greater
of (a) the net book value of such Accounts and Inventory, or (b) the reduction in the Borrowing
Base upon giving effect to such disposition, shall be applied to the Revolver Loans.




          5.3.2 Extraordinary Receipts. If Holdings or any Obligor shall receive any
Extraordinary Receipts at any time during a Low Availability Period, Borrowers shall concurrently
with such receipt repay all outstanding Revolving Loans in an amount equal to all Extraordinary
Receipts.




          5.3.3 Casualty or Condemnation. Concurrently with the receipt of any proceeds or
awards of any Casualty or Condemnation in respect of any ABL Priority Collateral, Borrowers shall,
subject to and in accordance with the Intercreditor Agreement, repay Revolving Loans in an amount
equal to such proceeds or otherwise apply such proceeds or awards in accordance with Section 8.6.2.




     5.4 Payment of Other Obligations. Obligations other than Loans, including LC
Obligations and Extraordinary Expenses but excluding Bank Product Obligations, shall be paid by
Borrowers as provided in the Loan Documents or, if no payment date is specified, on demand.



     5.5 Marshaling; Payments Set Aside. None of Agent or Lenders shall be under any
obligation to marshal any assets in favor of any Obligor or against any Obligations. If any
payment by or on behalf of Borrowers is made to Agent, Issuing Bank or any Lender, or Agent,
Issuing Bank or any Lender exercises a 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 Agent, Issuing Bank or
such Lender in its discretion) to be repaid to a trustee, receiver or any other Person, then to the
extent of such recovery, the Obligation



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originally intended to be satisfied, and all Liens, rights and remedies relating thereto,
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred.



     5.6 Post-Default Allocation of Payments.



          5.6.1 Allocation. Notwithstanding anything herein to the contrary, during an Event of
Default, monies to be applied to the Obligations, whether arising from payments by Obligors,
realization on Collateral, setoff or otherwise, shall be allocated as follows:




          (a) first, to all costs and expenses, including Extraordinary Expenses, owing to
Agent;




          (b) second, to all amounts owing to Agent on Swingline Loans;




          (c) third, to all amounts owing to Issuing Bank on LC Obligations;




          (d) fourth, to all Obligations constituting fees (excluding amounts relating to Bank
Products);




          (e) fifth, to all Obligations constituting interest (excluding amounts relating to
Bank Products);




          (f) sixth, to provide Cash Collateral for outstanding Letters of Credit;




          (g) seventh, to all other Obligations, other than Bank Product Debt; and




          (h) last, to Bank Product Debt.



Amounts shall be applied to each category of Obligations set forth above until Full Payment thereof
and then to the next category. If amounts are insufficient to satisfy a category, they shall be
applied on a pro rata basis among the Obligations in the category. The allocations set forth in
this Section are solely to determine the rights and priorities of Agent and Lenders as among
themselves, and may be changed by agreement among them without the consent of any Obligor. This
Section is not for the benefit of or enforceable by any Borrower.




          5.6.2 Erroneous Application. Agent shall not be liable for any application of amounts
made by it and, if any such application is subsequently determined to have been made in error, the
sole recourse of any Lender or other Person to which such amount should have been made shall be to
recover the amount from the Person that actually received it (and, if such amount was received by
any Lender, such Lender hereby agrees to return it).




     5.7 Application of Payments. The ledger balance in the main Dominion Account as of
the end of a Business Day shall be applied to the Obligations at the beginning of the next Business
Day. If, as a result of such application, a credit balance exists, the balance shall not accrue
interest in favor of Borrowers and shall be made available to Borrowers as long as no Default or
Event of Default exists. Each Borrower irrevocably waives the right to direct the application of
any payments or Collateral proceeds, and agrees that Agent shall have the continuing, exclusive
right to apply and reapply same against the Obligations, in such manner as Agent deems advisable,
notwithstanding any entry by Agent in its records.



     5.8 Loan Account; Account Stated.



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          5.8.1 Loan Account. Agent shall maintain in accordance with its usual and customary
practices an account or accounts (“Loan Account”) evidencing the Indebtedness of Borrowers
resulting from each Loan or issuance of a Letter of Credit from time to time. Any failure of Agent
to record anything in the Loan Account, or any error in doing so, shall not limit or otherwise
affect the obligation of Borrowers to pay any amount owing hereunder. Agent may maintain a single
Loan Account in the name of Borrower Agent, and each Borrower confirms that such arrangement shall
have no effect on the joint and several character of its liability for the Obligations.




          5.8.2 Entries Binding. Entries made in the Loan Account shall constitute presumptive
evidence of the information contained therein. If any information contained in the Loan Account is
provided to or inspected by any Person, then such information shall be conclusive and binding on
such Person for all purposes absent manifest error, except to the extent such Person notifies Agent
in writing within 30 days after receipt or inspection that specific information is subject to
dispute.




     5.9 Taxes.



          5.9.1 Payments Free of Taxes. All payments by Obligors of Obligations shall be free
and clear of and without reduction for any Taxes. If Applicable Law requires any Obligor or Agent
to withhold or deduct any Tax (including backup withholding or withholding Tax), it shall be based
on information provided pursuant to Section 5.10 and Agent shall pay the amount withheld or
deducted to the relevant Government Authority. If the withholding or deduction is made on account
of Indemnified Taxes or Other Taxes, the sum payable by Borrowers shall be increased so that Agent,
Lender or Issuing Bank, as applicable, receives an amount equal to the sum it would have received
if no such withholding or deduction (including deductions applicable to additional sums payable
under this Section) had been made. Without limiting the foregoing, Borrowers shall timely pay all
Other Taxes to the relevant Governmental Authorities.




          5.9.2 Payment. Borrowers shall indemnify, hold harmless and reimburse (within 10 days
after demand therefor) Agent, Lenders and Issuing Bank for any Indemnified Taxes or Other Taxes
(including those attributable to amounts payable under this Section) withheld or deducted by any
Obligor or Agent, or paid by Agent, any Lender or Issuing Bank, with respect to any Obligations,
Letters of Credit or Loan Documents, whether or not such Taxes were properly asserted by the
relevant Governmental Authority, and including all penalties, interest and reasonable expenses
relating thereto, as well as any amount that a Lender or Issuing Bank fails to pay indefeasibly to
Agent under Section 5.10. A certificate as to the amount of any such payment or liability
delivered to Borrower Agent by Agent, or by a Lender or Issuing Bank (with a copy to Agent) shall
be conclusive absent manifest error. As soon as practicable after any payment of Taxes by a
Borrower, Borrower Agent shall deliver to Agent a receipt from the Governmental Authority or other
evidence of payment satisfactory to Agent.




     5.10 Lender Tax Information.



          5.10.1 Status of Lenders. Each Lender shall deliver documentation and information to
Agent and Borrower Agent, at the times and in form required by Applicable Law or reasonably
requested by Agent or Borrower Agent, sufficient to permit Agent or Borrowers to determine
(a) whether or not payments made with respect to Obligations are subject to 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 for such payments or otherwise to
establish such Lender’s status for withholding tax purposes in the applicable jurisdiction.




          5.10.2 Documentation. If a Borrower is resident for tax purposes in the United
States, any Lender that is a “United States Person” within the meaning of section 7701(a)(30) of
the Code shall deliver to Agent and Borrower Agent IRS Form W-9 or such other documentation or
information



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prescribed by Applicable Law or reasonably requested by Agent or Borrower Agent to determine
whether such Lender is subject to backup withholding or information reporting requirements. If any
Foreign Lender is entitled to any exemption from or reduction of withholding tax for payments with
respect to the Obligations, it shall deliver to Agent and Borrower Agent on or prior to the date on
which it becomes a Lender hereunder (and from time to time thereafter upon the request of Agent or
Borrower Agent, but only if such Foreign Lender is legally entitled to do so), (a) IRS Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the United States is a party;
(b) IRS Form W-8ECI; (c) IRS Form W-8IMY and all required supporting documentation; (d) in the case
of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section
881(c) of the Code, IRS Form W-8BEN and a certificate showing such Foreign Lender is not (i) a
“bank” within the meaning of section 881(c)(3)(A) of the Code, (ii) a “10 percent shareholder” of
any Obligor within the meaning of section 881(c)(3)(B) of the Code, or (iii) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code; or (e) any other form prescribed by
Applicable Law as a basis for claiming exemption from or a reduction in withholding tax, together
with such supplementary documentation necessary to allow Agent and Borrowers to determine the
withholding or deduction required to be made.




          5.10.3 Lender Obligations. Each Lender and Issuing Bank shall promptly notify
Borrowers and Agent of any change in circumstances that would change any claimed exemption or
reduction. Each Lender and Issuing Bank shall indemnify, hold harmless and reimburse (within 10
days after demand therefore) Borrowers and Agent for any Taxes, losses, claims, liabilities,
penalties, interest and expenses (including reasonable attorneys’ fees) incurred by or asserted
against a Borrower or Agent by any Governmental Authority due to such Lender’s or Issuing Bank’s
failure to deliver, or inaccuracy or deficiency in, any documentation required to be delivered by
it pursuant to this Section. Each Lender and Issuing Bank authorizes Agent to set off any amounts
due to Agent under this Section against any amounts payable to such Lender or Issuing Bank under
any Loan Document. This Section shall survive Full Payment of the Obligations, or any resignation
or replacement of Agent, any Lender or Issuing Bank.




     5.11 Nature and Extent of Each Borrower’s Liability.



          5.11.1 Joint and Several Liability. Each Borrower agrees that it is jointly and
severally liable for, and absolutely and unconditionally guarantees to Agent and Lenders the prompt
payment and performance of, all Obligations and all agreements under the Loan Documents. Each
Borrower agrees that its guaranty Obligations hereunder constitute a continuing guaranty of payment
and not of collection, that such Obligations shall not be discharged until Full Payment of all
Obligations, and that such Obligations are absolute and unconditional, irrespective of, and will
not be discharged, impaired, or affected by: (a) the genuineness, validity, regularity,
enforceability, subordination or any future modification of, or change in, any Obligations or Loan
Document, or any other document, instrument or agreement to which any Obligor is or may become a
party or be bound, or the power or authority or lack thereof of any other Obligor to incur its
Obligations; (b) the absence of any action to enforce this Agreement (including this Section
5.11) or any other Loan Document, or any waiver, consent or indulgence of any kind by Agent or any
Lender with respect thereto; (c) the existence, value or condition of, or failure to perfect a Lien
or to preserve rights against, any security or guaranty for the Obligations or any action, or the
absence of any action, by Agent or any Lender in respect thereof (including the release of any
security or guaranty); (d) the insolvency of any Obligor; (e) the payment of all of the Obligations
at any time or from time to time, except Full Payment of all Obligations; (f) the existence or
non-existence of any Obligor as a legal entity; (g) any transfer by any Obligor of all or any part
of any Collateral; (h) any statute of limitations affecting the liability of any other Obligor
hereunder or under any of the other Loan Documents or the ability of Agent or Lenders to enforce
this Agreement, this Section 5.11, or any other provision of any Loan Document; (i) any right of
offset, counterclaim or defense of any Obligor, including, without limitation, those that have been
waived by the Obligors pursuant to this Section 5.11; (j) any election by Agent or any Lender in an
Insolvency Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code; (k) any
borrowing or grant of a Lien by any



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other Obligor, as debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise;
(l) the disallowance of any claims of Agent or any Lender against any Obligor for the repayment of
any Obligations under Section 502 of the Bankruptcy Code or otherwise; or (m) any other action or
circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety
or guarantor, except Full Payment of all Obligations.




          5.11.2 Permitted Actions. Except as otherwise expressly provided by this Agreement,
Agent and Lenders may from time to time, in their sole discretion and without notice to any
Obligor, take any or all of the following actions: (a) retain or obtain Liens in any assets of any
Obligor or any other Person to secure any of the Obligations; (b) retain or obtain the primary or
secondary obligation of any obligor or obligors, in addition to the Obligors, with respect to any
of the Obligations; (c) extend or renew for one or more periods (whether or not longer than the
original period), or, with the agreement of the Borrowers, alter or exchange any of the
Obligations; (d) waive, ignore, or forbear from taking action or otherwise exercising any of its
default rights or remedies with respect to any default by the Obligors under the Loan Documents;
(e) release, waive, or compromise any obligation of the Obligors hereunder or any obligation of any
nature of any other obligor primarily or secondarily obligated with respect to any of the
Obligations; (f) release Agent’s Liens in, or surrender, release or permit any substitution or
exchange for, all or any part of the Collateral now or hereafter securing any of the Obligations or
any obligation hereunder, or extend or renew for one or more periods (whether or not longer than
the original period) or release, waive, compromise, alter or exchange any obligations of any nature
of any Obligor with respect to any such property; and (g) demand payment or performance of any of
the Obligations from any Obligor at any time or from time to time, whether or not Agent or any
Lender has exercised any of its rights or remedies with respect to any property securing any of the
Obligations or any obligation hereunder or proceeded against any other Obligor or other Person
primarily or secondarily liable for payment or performance of any of the Obligations.




          5.11.3 Waivers.




          (a) Each Obligor expressly waives, to the extent not prohibited by Applicable Law, and except
to the extent otherwise expressly required pursuant to this Agreement: (i) all rights to revoke
its guaranty pursuant to this Section 5.11 at any time; (ii) notice of the acceptance by Agent and
Lenders; (iii) notice of the existence, creation, payment, nonpayment, performance or
nonperformance of all or any of the Obligations; (iv) presentment, demand, notice of dishonor,
protest, notice of protest and all other notices whatsoever with respect to the payment or
performance of the Obligations or the amount thereof or any payment or performance by the Obligors
hereunder; (v) all diligence in collection or protection of or realization upon the Obligations or
any thereof, any obligation hereunder or any security for or guaranty of any of the foregoing;
(vi) any right to direct or affect the manner or timing of Agent’s enforcement of its rights or
remedies; (vii) any and all defenses that would otherwise arise upon the occurrence of any event or
contingency described in Sections 5.11.1 or 5.11.2 hereof or upon the taking of any action by Agent
or Lenders permitted hereunder; (viii) any defense, right of set-off, claim or counterclaim
whatsoever and any and all other rights, benefits, protections and other defenses available to such
Obligor now or at any time hereafter, including under California Civil Code Sections 2787 to 2855,
inclusive, and California Code of Civil Procedure Sections 580a, 580b, 580d or 726, and all
successor sections, whether or not constituting Applicable Law; and (ix) all other principles or
provisions of law, if any, that conflict with the terms of this Section 5.11, including the effect
of any circumstances that may or might constitute a legal or equitable discharge of a guarantor or
surety.




          (b) Each Obligor expressly waives all rights that it may have now or in the future under any
statute, at common law, in equity or otherwise, to compel Agent or Lenders to marshal assets or to
proceed against any Obligor, other Person or security for the payment or performance of any
Obligations before, or as a condition to, proceeding against such Obligor.




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          (c) Agent and Lenders may, in their discretion, pursue such rights and remedies hereunder,
under the other Loan Documents and under Applicable Law as they deem appropriate, including
realization upon Collateral or, if applicable, any Real Estate by judicial foreclosure or non
judicial sale or enforcement, without affecting any rights and remedies under this Section 5.11.
If, in the exercise of any rights or remedies, Agent or any Lender forfeits any of its rights or
remedies, including its right to enter a deficiency judgment against any Obligor or any other
Person, whether because of any applicable laws pertaining to “election of remedies” or otherwise,
each Obligor consents to such action by Agent or such Lender and waives any claim based upon such
action, even if the action may result in loss of any rights of subrogation that any Obligor might
otherwise have had but for such action.




          (d) If Agent bids at any foreclosure or trustee’s sale or at any private sale, Agent may bid
all or a portion of the Obligations and the amount of such bid need not be paid by Agent but shall
be credited against the Obligations. The amount of the successful bid at any such sale, whether
Agent or any other Person is the successful bidder, shall be conclusively deemed to be the fair
market value of the Collateral, and the difference between such bid amount and the remaining
balance of the Obligations shall be conclusively deemed to be the amount of the Obligations
guaranteed under this Section 5.11, notwithstanding that any present or future law or court
decision may have the effect of reducing the amount of any deficiency claim to which Agent or any
Lender might otherwise be entitled but for such bidding at any such sale.




          (e) Each Obligor waives all rights and defenses arising out of an election of remedies by the
Agent and the Lenders, even though that election of remedies, such as a nonjudicial foreclosure
with respect to security for a guaranteed obligation, has destroyed such Obligor’s rights of
subrogation and reimbursement against the principal by the operation of Section 580d of the
California Code of Civil Procedure or otherwise.




          (f) Any reference to California code sections shall be deemed to include any equivalent code
provisions under New York law. Without limiting the applicability of the equivalent code provisions
under New York law, the foregoing references to the California Code of Civil Procedure and the
California Civil Code shall apply if, notwithstanding the provisions of Section 14.13, the laws of
the State of California are applied to the Loan Documents; provided, that the inclusion of such
provisions does not affect or limit in any way the parties’ choice of New York law.




          5.11.4 Extent of Liability; Contribution.




          (a) Notwithstanding anything herein to the contrary, each Borrower’s liability under this
Section 5.11 shall be limited to the greater of (i) all amounts for which such Borrower is
primarily liable, as described below, and (ii) such Borrower’s Allocable Amount.




          (b) If any Borrower makes a payment under this Section 5.11 of any Obligations (other than
amounts for which such Borrower is primarily liable) (a “Guarantor Payment”) that, taking
into account all other Guarantor Payments previously or concurrently made by any other Borrower,
exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the
aggregate Obligations satisfied by such Guarantor Payments in the same proportion that such
Borrower’s Allocable Amount bore to the total Allocable Amounts of all Borrowers, then such
Borrower shall be entitled to receive contribution and indemnification payments from, and to be
reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their
respective Allocable Amounts in effect immediately prior to such Guarantor Payment. The
“Allocable Amount” for any Borrower shall be the maximum amount that could then be
recovered from such Borrower under this Section 5.11 without rendering such payment voidable under
Section 548 of the Bankruptcy Code or under any applicable state fraudulent transfer or conveyance
act, or similar statute or common law.




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          (c) Nothing contained in this Section 5.11 shall limit the liability of any Borrower to pay
Loans made directly or indirectly to that Borrower (including Loans advanced to any other Borrower
and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower), LC
Obligations relating to Letters of Credit issued to support such Borrower’s business, and all
accrued interest, fees, expenses and other related Obligations with respect thereto, for which such
Borrower shall be primarily liable for all purposes hereunder. Agent and Lenders shall have the
right, at any time in their discretion, to condition Loans and Letters of Credit upon a separate
calculation of borrowing availability for each Borrower and to restrict the disbursement and use of
such Loans and Letters of Credit to such Borrower.




          5.11.5 Joint Enterprise. Each Borrower has requested that Agent and Lenders make this
credit facility available to Borrowers on a combined basis, in order to finance Borrowers’ business
most efficiently and economically. Borrowers’ business is a mutual and collective enterprise, and
Borrowers believe that consolidation of their credit facility will enhance the borrowing power of
each Borrower and ease the administration of their relationship with Lenders, all to the mutual
advantage of Borrowers. Borrowers acknowledge and agree that Agent’s and Lenders’ willingness to
extend credit to Borrowers and to administer the Collateral on a combined basis, as set forth
herein, is done solely as an accommodation to Borrowers and at Borrowers’ request.




          5.11.6 Subordination. Each Borrower hereby subordinates any claims, including any
rights at law or in equity to payment, subrogation, reimbursement, exoneration, contribution,
indemnification or set off, that it may have at any time against any other Obligor, howsoever
arising, to the Full Payment of all Obligations.




SECTION 6 CONDITIONS PRECEDENT




     6.1 Conditions Precedent to Initial Loans. In addition to the conditions set forth in
Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit,
or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that
each of the following conditions has been satisfied:



          (a) Agent shall have received, in form and substance satisfactory to Agent and Lenders, the
following





     (i) Notes, duly executed by Borrowers to the extent any Lender has requested
issuance of a Note;




     (ii) photocopies of all Pledged Collateral delivered to the Term Loan Agent.




     (iii) Mortgages duly executed, acknowledged and delivered by the Company in
form suitable for filing or recording in all filing or recording offices necessary
in order to create a valid Lien on the property described therein in favor of Agent
for the benefit of the Secured Parties, together with (for each property subject to
a Mortgage):




     (A) evidence that all filing, documentary, stamp, intangible and
recording taxes and fees have been paid;




     (B) a duly executed Environmental Agreement; and




     (C) copies of title policies, surveys, environmental and engineering,
soils and other reports and material documents and agreements delivered to
the Term Loan Agent under the Term Loan Facility in connection any mortgage
thereunder of the property subject to the Mortgage;



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     (iv) Lien Waivers, Deposit Account Control Agreements and each other Loan
Document required hereunder and set forth on the closing list delivered to the
Company by Agent, duly executed and delivered by each of the signatories thereto;




     (v) The Intercreditor Agreement, duly executed and delivered by the Term Loan
Agent and the Company;




     (vi) acknowledgments of all filings or recordations necessary to perfect its
Liens in the Collateral, as well as UCC and Lien searches and other evidence
satisfactory to Agent that such Liens are the only Liens upon the Collateral, except
Permitted Liens;




     (vii) certificates from a knowledgeable Senior Officer of each Borrower
certifying that, after giving effect to the initial Loans and transactions
hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists;
(iii) the representations and warranties set forth in Section 9 are true and
correct; and (iv) such Borrower has complied with all agreements and conditions to
be satisfied by it under the Loan Documents;




     (viii) A certificate of a duly authorized officer of each Obligor, certifying
(i) that attached copies of such Obligor’s Organic Documents are true and complete,
and in full force and effect, without amendment except as shown; (ii) that an
attached copy of resolutions authorizing execution and delivery of the Loan
Documents is true and complete, and that such resolutions are in full force and
effect, were duly adopted, have not been amended, modified or revoked, and
constitute all resolutions adopted with respect to this credit facility; and
(iii) to the title, name and signature of each Person authorized to sign the Loan
Documents. Agent may conclusively rely on this certificate until it is otherwise
notified by the applicable Obligor in writing;




     (ix) a favorable written opinion of Jones Day, as well as any local counsel to
Borrowers or Agent, relating to the Loan Documents;




     (x) copies of the charter documents of each Obligor, certified by the Secretary
of State or other appropriate official of such Obligor’s jurisdiction of
organization, and good standing certificates for each Obligor, issued by the
Secretary of State or other appropriate official of such Obligor’s jurisdiction of
organization and each jurisdiction where such Obligor’s conduct of business or
ownership of Property necessitates qualification;




     (xi) copies of (A) a report of Moore-McNeil, LLC as to insurance policies and
coverages maintained, or to be maintained after giving effect to the Transactions,
by Holdings and the Subsidiaries and (B) policies or certificates of insurance for
the insurance policies carried by Borrowers, together with standard lenders’ loss
payable endorsement, all in compliance with the Loan Documents;




     (xii) a Borrowing Base Certificate;




     (xiii) the Supporting Letter of Credit;




     (xiv) an operating forecast setting forth the Borrowers’ working capital
accounts, including a detailed calculation of the Borrowing Base and available cash,
prepared on a daily pro forma basis after giving effect to the Valero Acquisition,
for the two week period following the Closing Date;



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     (xv) an environmental assessment report from RMT, Inc., which report shall
identify existing and potential environmental concerns and shall quantify related
costs and liabilities, associated with any facilities of Holdings, the Company or
any of their respective Subsidiaries, and Lenders shall be satisfied with the nature
and amount of any such matters and with Holdings’ and the Company’s plans with
respect thereto;




     (xvi) UCC-3 terminations and all other release and termination documents
terminating or releasing all Liens on Collateral other than Permitted Liens;




     (xvii) copies of the Stock Purchase Agreement, the Merger Agreement, the
Offtake Agreement and the Term Loan Documents, duly executed by the parties thereto
and in form and substance satisfactory to the Lenders, certified as true and correct
by a Senior Officer of the Borrower Agent;




     (xviii) certified copies of a certificate of merger from the Secretary of State
of the State of Delaware or other confirmation satisfactory to the Lenders of the
consummation of the Merger substantially contemporaneously with the making of the
initial Loans hereunder; and




     (xix) the IDB Consents.



          (b) No changes or developments shall have occurred, and no new or additional information shall
have been received or discovered by Agent or the Lenders regarding Holdings, the Company or the
Acquired Company and their respective Subsidiaries or the Transactions after November 30, 2007 that
(i) either individually or in the aggregate could reasonably be expected to have a Material Adverse
Effect or (ii) materially and adversely affects (A) the business, assets, properties, liabilities,
operations, conditions or prospects of the Acquired Company, (B) the Transactions or (C) the
quality, quantity or value of any Collateral.




          (c) the Valero Acquisition shall have been consummated substantially contemporaneously with
the making of the initial Loans hereunder, on terms acceptable to Agent, including (i) satisfactory
legal documentation, (ii) Agent’s satisfaction with Holding’s and the Company’s corporate, capital
and ownership structures after giving effect to the Valero Acquisition, and (iii) receipt by the
Company of all government, shareholder and third party consents (including Hart-Scott-Rodino
clearance) deemed necessary or appropriate by Agent.




          (d) Upon giving effect to the Transactions, including initial funding of Loans and issuance of
Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection
herewith, Availability shall be at least $20,000,000.




          (e) The Company shall have received (i) cash proceed of not less than $270,000,000 from the
funding of the Term Loan Facility after deduction of any original issue discount and payment of
costs and expenses and before funding the Crack Spread Hedge Agreement Cash Collateral and
(ii) cash proceeds of not less than $100,000,000 from the Holdings Contribution, which Holdings
shall have transferred to the Company as a contribution to the common equity of the Company.




          (f) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the
Closing Date.




          (g) There shall not have occurred since June 11, 2008 a material disruption of or material
adverse change in conditions in the financial, banking or capital markets.




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     6.2 Conditions Precedent to All Credit Extensions. Agent, Issuing Bank and Lenders
shall not be required to fund any Loans, arrange for issuance of any Letters of Credit or grant any
other accommodation to or for the benefit of Borrowers, unless the following conditions are
satisfied:



          (a) No Default or Event of Default shall exist at the time of, or result from, such funding,
issuance or grant;




          (b) The representations and warranties of each Obligor in the Loan Documents shall be true and
correct in all material respects on the date of, and upon giving effect to, such funding, issuance
or grant (except for representations and warranties that expressly relate to an earlier date);




          (c) No event shall have occurred or circumstance exist that has or could reasonably be
expected to have a Material Adverse Effect; and




          (d) With respect to issuance of a Letter of Credit, the LC Conditions shall be satisfied.



Each request (or deemed request) by Borrowers for funding of a Loan, issuance of a Letter of Credit
or grant of an accommodation shall constitute a representation by Borrowers that the foregoing
conditions are satisfied on the date of such request and on the date of such funding, issuance or
grant.




     6.3 Limited Waiver of Conditions Precedent. If Agent, Issuing Bank or Lenders fund
any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation when any
conditions precedent are not satisfied (regardless of whether the lack of satisfaction was known or
unknown at the time), it shall not operate as a waiver of (a) the right of Agent, Issuing Bank and
Lenders to insist upon satisfaction of all conditions precedent with respect to any subsequent
funding, issuance or grant; nor (b) any Default or Event of Default due to such failure of
conditions or otherwise.



SECTION 7 COLLATERAL




     7.1 Grant of Security Interest. To secure the prompt payment and performance of all
Obligations, Holdings and each Borrower hereby grants to Agent, for the benefit of Secured Parties,
a continuing security interest in and Lien upon all Property of Holdings and such Borrower,
including all of the following Property, whether now owned or hereafter acquired, and wherever
located:



          (a) all Accounts;




          (b) all Chattel Paper, including electronic chattel paper;




          (c) all Commercial Tort Claims;




          (d) all Deposit Accounts;




          (e) all Documents;




          (f) all General Intangibles, including Intellectual Property;




          (g) all Goods, including Inventory, Equipment and fixtures;




          (h) all Instruments;




          (i) all Investment Property;




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          (j) all Letter-of-Credit Rights;




          (k) all Supporting Obligations;




          (l) all monies, whether or not in the possession or under the control of Agent, a Lender, or a
bailee or Affiliate of Agent or a Lender, including any Cash Collateral;




          (m) all accessions to, substitutions for, and all replacements, products, and cash and
non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect to
insurance policies, and claims against any Person for loss, damage or destruction of any
Collateral; and




          (n) all books and records (including customer lists, files, correspondence, tapes, computer
programs, print-outs and computer records) pertaining to the foregoing.



Notwithstanding anything herein to the contrary, in no event shall the security interest granted
hereunder attach to (a) any Excluded Deposit Account or (b) any contract or agreement to which
Holdings or any Borrower is a party or to any of its rights or interests thereunder if and for so
long as the grant of such security interest shall constitute or result in (i) the unenforceability
of any right of Holdings or such Borrower therein or (ii) in a breach or termination pursuant to
the terms of, or a default under, any such contract or agreement (other than to the extent that any
such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the
New York UCC or any other applicable law or principles of equity); provided, however, that such
security interest shall attach immediately at such time as the condition causing such
unenforceability shall be remedied and, to the extent severable, shall attach immediately to any
portion of such contract or agreement that does not result in any of the consequences specified in
clause (i) or (ii) above, including any Proceeds of such contract or agreement.




     7.2 Lien on Deposit Accounts; Cash Collateral.



          7.2.1 Deposit Accounts. To further secure the prompt payment and performance of all
Obligations, Holdings and each Borrower hereby grants to Agent, for the benefit of Secured Parties,
a continuing security interest in and Lien upon all amounts credited to any Deposit Account, other
than Excluded Deposit Accounts, of Holdings or such Borrower, including any sums in any blocked or
lockbox accounts or in any accounts into which such sums are swept. Holdings and each Borrower
authorizes and directs each bank or other depository, effective upon receipt from Agent of notice
that a Low Availability Period exists, to deliver to Agent, on a daily basis and otherwise pursuant
to instructions of Agent, all balances in each Deposit Account maintained by Holdings or such
Borrower with such depository (other than Shared Deposit Accounts and Excluded Deposit Accounts),
for application to the Obligations then outstanding. Holdings and each Borrower irrevocably
appoints Agent as it’s attorney-in-fact to collect such balances to the extent any such delivery is
not so made.




          7.2.2 Cash Collateral. Any Cash Collateral may be invested, at Agent’s discretion, in
Permitted Investments, but Agent shall have no duty to do so, regardless of any agreement or course
of dealing with Holdings or any Borrower, and shall have no responsibility for any investment or
loss. Holdings and each Borrower hereby grants to Agent, for the benefit of Secured Parties, a
security interest in all Cash Collateral held from time to time and all proceeds thereof, as
security for the Obligations, whether such Cash Collateral is held in a Cash Collateral Account or
elsewhere. Agent may apply Cash Collateral to the payment of any Obligations, in such order as
Agent may elect, as they become due and payable. Each Cash Collateral Account and all Cash
Collateral shall be under the dominion and control of Agent. Neither Holding nor any Borrower nor
other Person claiming through or on behalf of any of them shall have any right to any Cash
Collateral, until Full Payment of all Obligations.



     7.3 Real Estate Collateral.




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          7.3.1 Lien on Real Estate. The Obligations shall also be secured by Mortgages upon
all Real Estate owned by Holdings and the Borrowers, including the Real Estate located at the Krotz
Springs Refinery. The Mortgages shall be duly recorded, at Borrowers’ expense, in each office
where such recording is required to constitute a fully perfected Lien on the Real Estate covered
thereby. If Holdings or any Borrower acquires Real Estate hereafter, Holdings and the Borrowers
shall, within 45 days, execute, deliver and record a Mortgage sufficient to create a first priority
Lien (subject to Permitted Liens) in favor of Agent on such Real Estate, and shall deliver all
Related Real Estate Documents.




          7.3.2 Collateral Assignment of Leases. To further secure the prompt payment and
performance of all Obligations, Holdings and each Borrower hereby transfers and assigns to Agent,
for the benefit of Secured Parties, all of Holdings and such Borrower’s right, title and interest
in, to and under all now or hereafter existing leases of real Property to which Holdings or such
Borrower is a party, whether as lessor or lessee, and all extensions, renewals, modifications and
proceeds thereof, except, in each case, to the extent the terms of the applicable lease prohibit
such assignment and transfer.




     7.4 Pledged Collateral.



          7.4.1 Pledged Equity Interests and Debt Securities. As security for the payment or
performance, as the case may be, in full of the Obligations, Holdings and each Borrower hereby
assigns and pledges to the Agent, its successors and assigns, for the benefit of the Secured
Parties, and hereby grants to the Agent, its successors and assigns, for the benefit of the Secured
Parties, a security interest in, all of Holdings’ and each Borrower’s right, title and interest in,
to and under (a) the Equity Interests now owned or at any time hereafter acquired by Holdings or
such Borrower, including the Equity Interests set forth opposite the name of Holdings and such
Borrower on Schedule 7.4, and all certificates and other instruments representing such Equity
Interests (collectively, the “Pledged Equity Interests”); (b)(i) the debt securities now
owned or at any time hereafter acquired by Holdings or such Borrower, including the debt securities
set forth opposite the name of Holdings and such Borrower on Schedule 7.4, and all promissory notes
and other instruments evidencing such debt securities (collectively, the “Pledged Debt
Securities”); (c) all other property that may be delivered to and held by the Agent pursuant to
the terms of this Section; (d) subject to Section 7.4.6, all payments of principal or interest,
dividends, cash, instruments and other property from time to time received, receivable or otherwise
distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds
received in respect of, the securities and instruments referred to in clauses (a) and (b) above;
(e) subject to Section 7.4.6, all rights and privileges of Holdings and such Borrower with respect
to the securities, instruments and other property referred to in clauses (a), (b), (c) and (d)
above; and (f) all Proceeds of any and all of the foregoing (the items referred to in clauses (a)
through (f) above being collectively referred to as the “Pledged Collateral”).




          7.4.2 Delivery of the Pledged Collateral.




          (a) Subject to the Terms of the Intercreditor Agreement, Holdings and each Borrower agrees to
deliver or cause to be delivered to the Agent any and all Pledged Securities at every time owned by
Holdings and such Borrower promptly following the acquisition thereof by Holdings or such Borrower.




          (b) Subject to the terms of the Intercreditor Agreement, Holdings and each Borrower will cause
(i) all Indebtedness of Holdings, any Subsidiary or any other Affiliate of Holdings and (ii) all
Indebtedness of any other person in a principal amount of $250,000 or more that, in each case, is
owing to Holdings or such Borrower to be evidenced by a duly executed promissory note that is
pledged and delivered to the Agent pursuant to the terms hereof.




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          (c) Upon delivery to the Agent, (i) any Pledged Securities shall be accompanied by undated
stock powers duly executed by Holdings or the applicable Borrower in blank or other instruments of
transfer satisfactory to the Agent and by such other instruments and documents as the Agent may
reasonably request and (ii) all other property comprising part of the Pledged Collateral shall be
accompanied by undated proper instruments of assignment duly executed by Holdings or the applicable
Borrower in blank and by such other instruments and documents as the Agent may reasonably request.
Each delivery of Pledged Securities after the date hereof shall be accompanied by a schedule
describing the Pledged Securities so delivered, which schedule shall be attached to Schedule 7.4
and made a part hereof; provided that failure to attach any such schedule hereto or any error in a
schedule so attached shall not affect the validity of the pledge of any Pledged Securities.




          7.4.3 Pledge Related Representations, Warranties and Covenants. Holdings and each
Borrower hereby jointly and severally represent, warrant and covenant to the Agent and the Secured
Parties that:




          (a) Schedule 7.4 sets forth a true and complete list, with respect to Holdings and each
Borrower, of (i) all the Equity Interests owned by Holdings or such Borrower and the percentage of
the issued and outstanding units of each class of the Equity Interests of the issuer thereof
represented by the Pledged Equity Interests owned by Holdings or such Borrower and (ii) all debt
securities owned by Holdings or such Borrower, and all promissory notes and other instruments
evidencing such debt securities. Schedule 7.4 sets forth all Equity Interests, debt securities and
promissory notes required to be pledged hereunder.




          (b) The Pledged Equity Interests and Pledged Debt Securities have been duly and validly
authorized and issued by the issuers thereof and (i) in the case of Pledged Equity Interests, are
fully paid and nonassessable and (ii) in the case of Pledged Debt Securities, are legal, valid and
binding obligations of the issuers thereof (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to
enforceability, to equitable principles of general application (regardless of whether enforcement
is sought in a proceeding in equity or at law)).




          (c) Except for the security interests granted hereunder, Holdings and each of the Borrowers
(i) is and, subject to any transfers or dispositions made in compliance with this Agreement, will
continue to be the direct owner, beneficially and of record, of the Pledged Collateral indicated on
Schedule 7.4 as owned by Holdings or such Borrower, (ii) holds the same free and clear of all Liens
(other than Term Facility Liens and other Liens or transfers or dispositions permitted under this
Agreement), (iii) will make no assignment, pledge, hypothecation or transfer of, or create or
permit to exist any security interest in or other Lien on, the Pledged Collateral (other than Term
Facility Liens and other Liens or transfers or dispositions permitted under this Agreement) and
(iv) will defend its title or interest thereto or therein against any and all Liens (other than
Term Facility Liens and other Liens or transfers or dispositions permitted under this Agreement),
however arising, of all persons whomsoever.




          (d) Holdings and each Borrower has the power and authority to pledge the Pledged Collateral
pledged by it hereunder in the manner hereby done or contemplated.




          (e) No Governmental Approval or any other action by any Governmental Authority and no consent
or approval of any securities exchange or any other person (including stockholders, partners,
members or creditors of Holdings or any Borrower) is or will be required for the validity of the
pledge effected hereby (other than such as have been obtained and are in full force and effect).




          (f) By virtue of the execution and delivery by Holdings and the Borrowers of this Agreement,
when any Pledged Securities are delivered to the Agent (or its gratuitous bailee) in



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accordance with this Agreement, the Agent will obtain a legal, valid and perfected lien upon
and security interest in such Pledged Securities as security for the payment and performance of the
Obligations.




          7.4.4 Certification of Limited Liability Company and Limited Partnership Interests.
Each interest in any limited liability company or limited partnership controlled by Holdings or any
Borrower and pledged hereunder shall be represented by a certificate, shall be a “security” within
the meaning of Article 8 of the New York UCC and shall be governed by Article 8 of the New York
UCC.




          7.4.5 Registration in Nominee Name; Denominations. Subject to the terms of the
Intercreditor Agreement, the Agent shall have the right (in its sole and absolute discretion) to
hold the Pledged Securities in its own name as pledgee, in the name of its nominee (as pledgee or
as sub-agent) or in the name of Holdings or the applicable Borrower, endorsed or assigned in blank
or in favor of the Agent. Holdings and each Borrower will promptly give to the Agent copies of any
notices or other communications received by it with respect to Pledged Collateral registered in the
name of Holdings or such Borrower. Subject to the terms of the Intercreditor Agreement, the Agent
shall at all times have the right to exchange the certificates representing Pledged Securities for
certificates of smaller or larger denominations for any purpose consistent with this Agreement.




          7.4.6 Voting Rights; Dividends and Interest.




          (a) Subject to the terms of the Intercreditor Agreement, unless and until an Event of Default
shall have occurred and be continuing and the Agent shall have notified the Obligors that their
rights under this Section are being suspended:





     (i) Holdings and each Borrower shall be entitled to exercise any and all voting
and other consensual rights and powers inuring to an owner of Pledged Collateral or
any part thereof for any purpose consistent with the terms of this Agreement and the
other Loan Documents; provided that such rights and powers shall not be exercised in
any manner that could materially and adversely affect the rights inuring to a holder
of any Pledged Collateral or the rights and remedies of the Agent or any other
Secured Party under this Agreement or any other Loan Document or the ability of the
Secured Parties to exercise the same.




     (ii) The Agent shall execute and deliver to Holdings and each Borrower, or
cause to be executed and delivered to Holdings and each Borrower, all such proxies,
powers of attorney and other instruments as Holdings and each Borrower may
reasonably request for the purpose of enabling Holdings and each Borrower to
exercise the voting and other consensual rights and powers it is entitled to
exercise pursuant to paragraph (a)(i) above.




     (iii) Each Obligor shall be entitled to receive and retain any and all
dividends, interest, principal and other distributions paid on or distributed in
respect of the Pledged Collateral to the extent and only to the extent that such
dividends, interest, principal and other distributions are permitted by, and
otherwise paid or distributed in accordance with, the terms and conditions of this
Agreement, the other Loan Documents and applicable laws; provided that any noncash
dividends, interest, principal or other distributions that would constitute Pledged
Equity Interests or Pledged Debt Securities, whether resulting from a subdivision,
combination or reclassification of the outstanding Equity Interests of the issuer of
any Pledged Collateral or received in exchange for Pledged Collateral or any part
thereof, or in redemption thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a party or
otherwise, shall be and become part of the Pledged Collateral and, if received by
Holdings or any



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Borrower, shall be held in trust for the benefit of the Agent, shall be
segregated from other property or funds of Holdings and each Borrower and shall be
forthwith delivered to the Agent upon demand in the same form as so received (with
any necessary endorsement).



          (b) Subject to the terms of the Intercreditor Agreement, upon the occurrence and during the
continuance of an Event of Default, after the Agent shall have notified the Obligors of the
suspension of their rights under paragraph (a)(iii) of this Section all rights of Holdings or any
Borrower to dividends, interest, principal or other distributions that Holdings or any Borrower is
authorized to receive pursuant to paragraph (a)(iii) of this Section shall cease, and all such
rights shall thereupon become vested in the Agent, which shall have the sole and exclusive right
and authority to receive and retain such dividends, interest, principal or other distributions.
All dividends, interest, principal or other distributions received by any Holdings or any Borrower
contrary to the provisions of this Section shall be held in trust for the benefit of the Agent,
shall be segregated from other property or funds of Holdings and each Borrower and shall be
forthwith delivered to the Agent upon demand in the same form as so received (with any necessary
endorsement). Any and all money and other property paid over to or received by the Agent pursuant
to the provisions of this paragraph shall be retained by the Agent in an account to be established
by the Agent upon receipt of such money or other property, shall be held as security for the
Obligations and shall be applied in accordance with the provisions of Section 5.6. After all
Events of Default have been cured or waived and the Agent shall have received a certificate from a
Senior Officer of Holdings and the Borrower Agent to that effect, the Agent shall promptly repay to
Holdings and each Borrower (without interest) all dividends, interest, principal or other
distributions that Holdings or such Borrower would otherwise be permitted to retain pursuant to the
terms of paragraph (a)(iii) of this Section and that remain in such account.




          (c) Subject to the terms of the Intercreditor Agreement, upon the occurrence and during the
continuance of an Event of Default, after the Agent shall have notified Holdings and the Borrowers
of the suspension of their rights under paragraph (a)(i) of this Section, all rights of Holdings or
any Borrower to exercise the voting and other consensual rights and powers it is entitled to
exercise pursuant to paragraph (a)(i) of this Section, and the obligations of the Agent under
paragraph (a)(ii) of this Section, shall cease, and all such rights shall thereupon become vested
in the Agent, which shall have the sole and exclusive right and authority (subject to the
Intercreditor Agreement) to exercise such voting and other consensual rights and powers; provided
that, unless otherwise directed by the Required Lenders, the Agent shall have the right from time
to, in its sole discretion, notwithstanding the continuance of an Event of Default, to permit
Holdings and the Borrowers to exercise such rights and powers.




     7.5 Other Collateral.



          7.5.1 Commercial Tort Claims. Borrowers shall promptly notify Agent in writing if any
Borrower has a Commercial Tort Claim (other than, as long as no Default or Event of Default exists,
a Commercial Tort Claim for less than $250,000) and, upon Agent’s request, shall promptly take such
actions as Agent deems appropriate to confer upon Agent (for the benefit of Secured Parties) a duly
perfected, first priority Lien upon such claim.




          7.5.2 Certain After-Acquired Collateral. Borrowers shall promptly notify Agent in
writing if, after the Closing Date, any Borrower obtains any interest in any Collateral consisting
of Deposit Accounts, Chattel Paper, Documents, Instruments, Intellectual Property, Investment
Property or Letter-of-Credit Rights and, upon Agent’s request, shall promptly take such actions as
Agent deems appropriate to effect Agent’s duly perfected, first priority Lien upon such Collateral,
including obtaining any appropriate possession, control agreement or Lien Waiver.




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     7.6 No Assumption of Liability. The Lien on Collateral granted hereunder is given as
security only and shall not subject Agent or any Lender to, or in any way modify, any obligation or
liability of Borrowers relating to any Collateral.



     7.7 Further Assurances. Promptly upon request, Borrowers shall deliver such
instruments, assignments or other documents or agreements, and shall take such actions, as Agent
deems appropriate under Applicable Law to evidence or perfect its Lien on any Collateral, or
otherwise to give effect to the intent of this Agreement, provided that, Borrowers shall not be
required to take any action to perfect under certificate of title statutes. Each Borrower
authorizes Agent to file any financing statement that indicates the Collateral as “all assets” or
“all personal property” of such Borrower, or words to similar effect, and ratifies any action taken
by Agent before the Closing Date to effect or perfect its Lien on any Collateral.



     7.8 Foreign Subsidiary Stock. Notwithstanding Section 2.1, not more than 65% of the
voting stock of any Foreign Subsidiary and 100% of all non-voting stock (if any) of each Foreign
Subsidiary shall be included in the Collateral.



SECTION 8 COLLATERAL ADMINISTRATION




     8.1 Borrowing Base Certificates. The Borrowers shall deliver to the Agent (a) If no
Low Availability Period is in effect, then on or before the 15th day of each month, a Borrowing
Base Certificate as of the end of the previous month, or (b) if a Low Availability Period is in
effect, then (i) on or before the 15th day of each month, a Borrowing Base Certificate as of the
end of the previous month and, (ii) in addition thereto, on or before the 25th day of each month, a
Borrowing Base Certificate as of the 15th day of such month, together with such
additional Borrowing Base Certificates as and when requested by the Agent in writing. Together
with each such Borrowing Base Certificate, the Borrowers shall deliver: (1) a schedule of the
Borrowers’ Accounts created, credits given, cash collected, and other adjustments to Accounts since
the last such schedule; (2) an aging of the Borrower’s Accounts, together with a reconciliation to
the corresponding Borrowing Base and to the Borrowers’ general ledger; (3) an aging of the
Borrowers’ accounts payable; (4) a detailed calculation and description of Eligible Petroleum
Inventory, Eligible Cash and Eligible Investments, Eligible In-Transit Petroleum Inventory, First
Purchaser Liens, and Paid but Unexpired Letters of Credit; (5) a schedule in reasonable detail
setting forth the additions and reductions in the Borrowers’ accounts receivable since delivery of
the previous Borrowing Base Certificate with a reconciliation to the corresponding accounts
receivable aging; and (6) Inventory reports by category, together with reconciliation to the
corresponding Borrowing Base and to the Borrowers’ general ledger. Upon request of the Agent, the
Borrowers shall deliver: (A) inventory reports by location; (B) copies of invoices in connection
with the Borrowers’ Accounts, customer statements, credit memos, remittance advices and reports,
deposit slips, shipping and delivery documents in connection with the Borrowers’ Accounts and for
Inventory and Equipment acquired by the Borrowers, purchase orders, and invoices; (C) a statement
of the balance of each intercompany Account, if any; (D) such other reports as to the Collateral as
the Agent shall reasonably request from time to time; and (E) with the delivery of each of the
foregoing, a certificate of the Borrower Agent executed by an officer thereof certifying as to the
accuracy and completeness of the foregoing. If the Borrowers’ records or reports of the Collateral
are prepared by an accounting service or other agent, the Borrowers hereby authorize such service
or agent to deliver such records, reports, and related documents to the Agent, for distribution to
the Lenders.



     8.2 Administration of Accounts.



          8.2.1 Records and Schedules of Accounts. Each Borrower shall keep accurate and
complete records of its Accounts, including all payments and collections thereon, and shall submit
to Agent sales, collection, reconciliation and other reports in form satisfactory to Agent, on such
periodic



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basis as Agent may request. If Accounts in an aggregate face amount of $2,500,000 or more
cease to be Eligible Accounts for any reason other than as a result of the exercise of the Agent’s
discretion in excluding such Accounts, Borrowers shall notify Agent of such occurrence promptly
(and in any event within one Business Day) after any Borrower has knowledge thereof.




          8.2.2 Taxes. If an Account of any Borrower includes a charge for any Taxes, Agent is
authorized, in its discretion, to pay the amount thereof to the proper taxing authority for the
account of such Borrower and to charge Borrowers therefor; provided, that neither Agent nor Lenders
shall be liable for any Taxes that may be due from Borrowers or with respect to any Collateral.




          8.2.3 Account Verification. Whether or not a Default or Event of Default exists,
Agent shall have the right at any time, in the name of Agent, any designee of Agent or any
Borrower, to verify the validity, amount or any other matter relating to any Accounts of Borrowers
by mail, telephone or otherwise. Borrowers shall cooperate fully with Agent in an effort to
facilitate and promptly conclude any such verification process.




          8.2.4 Maintenance of Dominion Account. Borrowers shall maintain Dominion Accounts
pursuant to lockbox or other arrangements acceptable to Agent. Borrowers shall obtain a Deposit
Account Control Agreement from each lockbox servicer and bank where a Dominion Account or Approved
Deposit Account (other than Excluded Deposit Accounts) is located, establishing Agent’s control
over and Lien in the lockbox or Approved Deposit Account and, with respect to all Approved Deposit
Account other than Shared Deposit Accounts and Excluded Deposit Accounts, requiring, at all times
during any Low Availability Period existing after September 30, 2008, immediate deposit of all
remittances received in the lockbox or Approved Deposit Account (other than Shared Deposit Accounts
and Excluded Deposit Accounts) to a Dominion Account for applications to the Obligations. If a
Dominion Account is not maintained with Bank of America, Agent may require immediate transfer of
all funds in such account to a Dominion Account maintained with Bank of America. Neither Agent nor
Lenders assume any responsibility to Borrowers for any lockbox arrangement, Approved Deposit
Account or Dominion Account, including any claim of accord and satisfaction or release with respect
to any Payment Items accepted by any bank.




          8.2.5 Proceeds of Collateral. Borrowers shall request in writing and otherwise take
all necessary steps to ensure that all payments on Accounts or otherwise relating to ABL Priority
Collateral, including any proceeds thereof, are made directly to an Approved Deposit Account (other
than a Shared Deposit Account or an Excluded Deposit Account) or a Dominion Account (or a lockbox
relating to such Approved Deposit Account or Dominion Account). If any Borrower or Subsidiary
receives cash or Payment Items with respect to any ABL Priority Collateral, it shall hold same in
trust for Agent and promptly (not later than the next Business Day) deposit same into an Approved
Deposit Account (other than a Shared Deposit Account or an Excluded Deposit Account) or a Dominion
Account.




     8.3 Administration of Inventory.



          8.3.1 Records and Reports of Inventory. Each Borrower shall keep accurate and
complete records of its Inventory, including costs and daily withdrawals and additions, and shall
submit to Agent inventory and reconciliation reports in form satisfactory to Agent, on such
periodic basis as Agent may request. Each Borrower shall conduct a physical inventory at least
once per calendar year (and on a more frequent basis if requested by Agent when an Event of Default
exists) and periodic cycle counts consistent with historical practices, and shall provide to Agent
a report based on each such inventory and count promptly upon completion thereof, together with
such supporting information as Agent may request. Agent may participate in and observe each
physical count.




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          8.3.2 Returns of Inventory. No Borrower shall return any Inventory to a supplier,
vendor or other Person, whether for cash, credit or otherwise, unless (a) such return is in the
Ordinary Course of Business; (b) no Default, Event of Default or Overadvance exists or would result
therefrom; (c) Agent is promptly notified if the aggregate value of all Inventory returned in any
month exceeds $50,000; and (d) any payment received by a Borrower for a return is promptly remitted
to Agent for application to the Obligations.




          8.3.3 Acquisition, Sale and Maintenance. No Borrower shall acquire or accept any
Inventory on consignment or approval (unless such Inventory shall be segregated and readily
identifiable as consigned Inventory), and shall take all steps to assure that all Inventory is
produced in accordance with Applicable Law, including the FLSA. No Borrower shall sell any
Inventory on consignment or approval or any other basis under which the customer may return or
require a Borrower to repurchase such Inventory. Borrowers shall use, store and maintain all
Inventory with reasonable care and caution, in accordance with applicable standards of any
insurance and in conformity with all Applicable Law, and shall make current rent payments (within
applicable grace periods provided for in leases) at all locations where any Collateral is located.




     8.4 Administration of Equipment.



          8.4.1 Records and Schedules of Equipment. Each Borrower shall keep accurate and
complete records of its Equipment, including kind, quality, quantity, cost, acquisitions and
dispositions thereof, and shall submit to Agent, on such periodic basis as Agent may request, a
current schedule thereof, in form satisfactory to Agent. Promptly upon request, Borrowers shall
deliver to Agent evidence of their ownership or interests in any Equipment.




          8.4.2 Condition of Equipment. The Equipment is in good operating condition and
repair, and all necessary replacements and repairs have been made so that the value and operating
efficiency of the Equipment is preserved at all times, reasonable wear and tear excepted. Each
Borrower shall ensure that the Equipment is mechanically and structurally sound, and capable of
performing the functions for which it was designed, in accordance with manufacturer specifications.




     8.5 Administration of Deposit Accounts. Schedule 8.5 sets forth all Deposit Accounts
maintained by Borrowers, including all Dominion Accounts. Each Borrower shall take all actions
necessary to establish Agent’s control of each such Deposit Account (other than Excluded Deposit
Accounts and any account exclusively used for payroll, payroll taxes or employee benefits, or any
accounts containing not more that $250,000 in the aggregate at any time). Each Borrower shall be
the sole account holder of each Deposit Account (other than Shared Deposit Accounts and Excluded
Deposit Accounts) and shall not allow any other Person (other than Agent or the Term Loan Agent) to
have control over a Deposit Account or any Property deposited therein. Each Borrower shall
promptly notify Agent of any opening or closing of a Deposit Account and, with the consent of
Agent, will amend Schedule 8.5 to reflect such change.



     8.6 General Provisions.



          8.6.1 Location of Collateral. All tangible items of Collateral, other than Inventory
in transit, shall at all times be kept by Borrowers at the business locations set forth in Schedule
8.6.1, except that Borrowers may (a) make sales or other dispositions of Collateral in accordance
with Section 10.2.6; and (b) store any ABL Priority Collateral in another location in the United
States, upon 30 Business Days prior written notice to Agent or such shorter period as the Agent may
agree.




          8.6.2 Insurance of Collateral; Condemnation Proceeds.




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          (a) Promptly upon the occurrence of the initial Casualty or Condemnation of any ABL Priority
Collateral, the Borrowers shall establish with or in the name of the Agent an account (the
“Proceeds Collateral Account”) over which the Agent shall have control and rights of
withdrawal, subject to the provisions of the Intercreditor Agreement. Amounts on deposit in the
Proceeds Collateral Account at any time shall be held by the Agent as security for the Obligations
(subject to the Intercreditor Agreement), and shall be invested and reinvested by the Agent, at the
direction of the Company, in Permitted Investments; provided that the investment of such amounts
shall be controlled solely by the Agent during the continuance of any Default or Event of Default.




          (b) Any proceeds of insurance arising from any Casualty of ABL Priority Collateral (other than
proceeds from workers’ compensation or D&O insurance) and any awards arising from Condemnation of
any ABL Priority Collateral shall be paid, subject to the Intercreditor Agreement, to Agent and
held in the Proceeds Collateral Account. All such proceeds (other than from business interruption
insurance) shall, at the option of the Agent, be applied to payment of the Revolver Loans, and then
to any other Obligations outstanding; provided, if requested by Borrowers in writing within 15 days
after Agent’s receipt of any insurance proceeds or condemnation awards relating to any loss or
destruction of any ABL Priority Collateral, Borrowers may use such proceeds or awards to repair or
replace such ABL Priority Collateral (and until so used, the proceeds shall be held by Agent as
Cash Collateral) as long as (i) no Default or Event of Default exists; (ii) such repair or
replacement is promptly undertaken and concluded, in accordance with plans reasonably satisfactory
to Agent; (iii) the repaired or replaced Property is free of Liens, other than Permitted Liens that
are not Purchase Money Liens; (v) Borrowers comply with disbursement procedures for such repair or
replacement as Agent may reasonably require; and (vi) the aggregate amount of such proceeds or
awards from any single casualty or condemnation does not exceed $5,000,000.




          (c) Any proceeds of insurance with respect to business interruption received by the Agent in
respect of any Casualty may, so long as no Default or Event of Default exists, upon request of the
Borrower Agent, be paid over to the Borrowers for payment of current operating expenses incurred by
the Borrowers and any other Subsidiary in the Ordinary Course of Business; provided, that the Agent
may establish reasonable procedures to ensure that such insurance proceeds are applied only for
such purpose.




          8.6.3 Protection of Collateral. All expenses of protecting, storing, warehousing,
insuring, handling, maintaining and shipping any Collateral, all Taxes payable with respect to any
Collateral (including any sale thereof), and all other payments required to be made by Agent to any
Person to realize upon any Collateral, shall be borne and paid by Borrowers. Agent shall not be
liable or responsible in any way for the safekeeping of any Collateral, for any loss or damage
thereto (except for reasonable care in its custody while Collateral is in Agent’s actual
possession), for any diminution in the value thereof, or for any act or default of any
warehouseman, carrier, forwarding agency or other Person whatsoever, but the same shall be at
Borrowers’ sole risk.




          8.6.4 Defense of Title to Collateral. Each Borrower shall at all times defend its
title to Collateral and Agent’s Liens therein against all persons, claims and demands whatsoever,
except Permitted Liens.




     8.7 Power of Attorney. Each Borrower hereby irrevocably constitutes and appoints
Agent (and all Persons designated by Agent) as such Borrower’s true and lawful attorney (and
agent-in-fact) until Full Payment of the Obligations, for the purposes provided in this Section.
Agent, or Agent’s designee, may, without notice and in either its or a Borrower’s name, but at the
cost and expense of Borrowers:



          (a) Endorse a Borrower’s name on any Payment Item or other proceeds of Collateral (including
proceeds of insurance) that come into Agent’s possession or control; and





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          (b) During an Event of Default, (i) notify any Account Debtors of the assignment of their
Accounts, demand and enforce payment of Accounts, by legal proceedings or otherwise, and generally
exercise any rights and remedies with respect to Accounts; (ii) settle, adjust, modify, compromise,
discharge or release any Accounts or other Collateral, or any legal proceedings brought to collect
Accounts or Collateral; (iii) sell or assign any Accounts and other Collateral upon such terms, for
such amounts and at such times as Agent deems advisable; (iv) take control, in any manner, of any
proceeds of Collateral; (v) prepare, file and sign a Borrower’s name to a proof of claim or other
document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien
or similar document; (vi) receive, open and dispose of mail addressed to a Borrower, and notify
postal authorities to change the address for delivery thereof to such address as Agent may
designate; (vii) endorse any Chattel Paper, Document, Instrument, invoice, freight bill, bill of
lading, or similar document or agreement relating to any Accounts, Inventory or other Collateral;
(viii) use a Borrower’s stationery and sign its name to verifications of Accounts and notices to
Account Debtors; (ix) use the information recorded on or contained in any data processing equipment
and computer hardware and software relating to any Collateral; (x) make and adjust claims under
policies of insurance; (xi) take any action as may be necessary or appropriate to obtain payment
under any letter of credit or banker’s acceptance for which a Borrower is a beneficiary; and
(xii) take all other actions as Agent deems appropriate to fulfill any Borrower’s obligations under
the Loan Documents.




SECTION 9 REPRESENTATIONS AND WARRANTIES




     9.1 General Representations and Warranties. To induce Agent and Lenders to enter into
this Agreement and to make available the Commitments, Loans and Letters of Credit, each of Holdings
and the Borrowers represents and warrants to Agent and each of the Lenders that:



          9.1.1 Organization; Powers. Each Obligor (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (b) has all requisite
power and authority and all material Governmental Approvals required for the ownership and
operation of its assets and the conduct of its business as now conducted and as proposed to be
conducted, (c) is qualified to do business in, and is in good standing in, every jurisdiction where
such qualification is required, except where the failure so to qualify could not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect and (d) has the
power and authority to execute, deliver and perform its obligations under each Loan Document and
each other agreement or instrument contemplated thereby to which it is or will be a party and, in
the case of any Borrower, to borrow hereunder.




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




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dated as of the Closing Date executed in connection with the Existing Parent Revolving Credit
Agreement have not been amended or otherwise modified.




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




          9.1.4 Governmental Approvals; Litigation.




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




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




          (c) There are no proceedings or investigations pending or, to Holdings or any Borrower’s
knowledge, threatened against Holdings, any Borrower or any other Subsidiary, or any of their
businesses, operations or Properties that (a) relate to any Loan Documents or Transactions; or
(b) could reasonably be expected to have a Material Adverse Effect.




          9.1.5 Financial Statements.




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




          (b) The Company has heretofore furnished to the Lenders its unaudited pro forma consolidated
balance sheet and related pro forma statements of income and cash flows as of and for the 12-month
period ending on December 31, 2007, prepared giving effect to the Transactions as if they had
occurred, with respect to such balance sheet, on such date and, with respect to such other
financial statements, on the first day of such 12-month period. Such pro forma consolidated
financial statements




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have been prepared in good faith by the Company, based on assumptions believed by the Company
to be reasonable, are based on the best information reasonably available to the Company as of the
date of delivery thereof, accurately reflect all material adjustments required to be made to give
effect to the Transactions and present fairly, in all material respects, on a pro forma basis the
estimated consolidated financial condition and results of operations and cash flows of the Company
and its consolidated Subsidiaries as of such date and for such period, assuming that the
Transactions had actually occurred on such date or at the beginning of such period, as the case may
be.




          9.1.6 No Material Adverse Change. (a) Since December 31, 2007, there has been no
event, condition or development that has resulted, or could reasonably be expected to result, in a
Material Adverse Effect, or (b) since the Closing Date, no material default or termination (other
than expiration of such agreement in accordance with its terms) has occurred, under any Material
Contract. To the knowledge of the Obligors, no circumstances exist that provide a basis upon which
any party (other than Holdings or any Subsidiary) could terminate a Material Contract prior to its
scheduled termination date.




          9.1.7 Title to Properties; Possession Under Leases. Each of Holdings and the
Subsidiaries has good and indefeasible title to, or valid leasehold interests in, all its material
assets (including all Mortgaged Properties), except for Permitted Encumbrances and minor defects in
title that do not materially interfere with its ability to conduct its business as currently
conducted or to utilize such properties and assets for their intended purposes. All such material
assets are free and clear of Liens, other than Permitted Liens. All Equity Interests owned by
Holdings and each Subsidiary are duly issued, fully paid and non-assessable. On the Closing Date,
the assets of Holdings and the Subsidiaries (including rights under any transitional services
agreement entered into with the Seller) will be sufficient to operate the Krotz Springs Refinery
and to conduct the Krotz Springs Refining Business, in each case, substantially in the manner as
currently conducted or as proposed to be conducted by the Company on the Closing Date.




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




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




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




          9.1.8 Subsidiaries. Upon delivery thereof on the Closing Date, Schedule 9.1.8 will
set forth, as of the Closing Date, a complete and correct list of the name and jurisdiction of
organization of, and the percentage of each class of Equity Interests owned by Holdings or any
Subsidiary in, each Subsidiary. Holdings owns all the issued and outstanding Equity Interests in
the Company, other than the Permitted Compensation Incentive Equity Interests. Neither Holdings
nor any Subsidiary owns any Equity Interests in any Person that is not a Subsidiary. Each
Subsidiary is a Wholly Owned Domestic Subsidiary. Except as set forth on Schedule 9.1.8, on the
Closing Date, there are no outstanding options to purchase, warrants, subscription rights,
agreements to issue or sell, convertible interests, phantom rights or powers of attorney relating
to any Equity Interests of Holdings or any Subsidiary.




          9.1.9 Litigation; Compliance with Laws.




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




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




          9.1.10 Agreements.




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




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




          (c) Upon delivery thereof on the Closing Date, Schedule 9.1.10 will set forth, as of the
Closing Date, each Material Contract of Holdings and its Subsidiaries, including, each ExxonMobil
Pipeline Supply Contract. Each ExxonMobil Pipeline Supply Contract is, as of the Closing Date, in
full force and effect.




          9.1.11 Federal Reserve Regulations.




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




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




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




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          9.1.13 Use of Proceeds. The Borrowers will use the proceeds of the Loans only for the
purposes specified in Section 2.1.3.




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




          9.1.15 No Material Misstatements. No report, financial statement, schedule,
certificate or other information furnished by or on behalf of Holdings or any Subsidiary to Agent,
the Arranger or any Lender in connection with the negotiation of any Loan Document or included
therein or delivered pursuant thereto contained, contains or will contain any material misstatement
of fact or omitted, omits or will omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were, are or will be made, not
misleading; provided, that to the extent any such report, financial statement, schedule,
certificate or other information was based upon or constitutes a forecast or projection, Holdings
and the Company represent only that Holdings and the Subsidiaries acted in good faith and utilized
reasonable assumptions and due care in the preparation of such report, financial statement,
schedule, certificate or other information.




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




          9.1.17 Environmental Matters. Except as set forth in Schedule 9.1.17 and except with
respect to any other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither Holdings nor any Subsidiary (a) has failed
to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (b) has become subject to any Environmental
Liability, (c) has received notice of any claim with respect to any Environmental Liability or
(d) knows of any basis for any Environmental Liability of Holdings or any Subsidiary. Since the
Closing Date, there has been no change in the status of the matters disclosed on Schedule 9.1.17
that, individually or in the aggregate, has resulted in, or materially increased the likelihood of,
a Material Adverse Effect.




          9.1.18 Insurance. Upon delivery thereof on the Closing Date, Schedule 9.1.18 will set
forth a complete and correct description of all insurance maintained by or on behalf of Holdings
and the Subsidiaries as of the Closing Date. As of the Closing Date, such insurance will be in
full force and effect and all premiums thereunder shall be duly paid. Holdings and the
Subsidiaries have insurance in such amounts and covering such risks and liabilities as are required
under Section 10.1.2.




          9.1.19 Security Documents.




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          (a) This Agreement and each Guarantee and Collateral Agreement, upon execution and delivery
thereof by the parties thereto, will create in favor of Agent, for the benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral and (i) when the
Collateral constituting certificated securities (as defined in the Uniform Commercial Code) is
delivered to Agent, together with instruments of transfer duly endorsed in blank, the security
interest created hereunder and under the Guarantee and Collateral Agreement will constitute a fully
perfected security interest in all right, title and interest of the pledgors thereunder in such
Collateral, prior and superior in right to any other Person, but subject to the Intercreditor
Agreement, and (ii) when financing statements in appropriate form are filed in the applicable
filing offices, the security interest created hereunder and under the Guarantee and Collateral
Agreement will constitute a fully perfected security interest in all right, title and interest of
the Obligors in the remaining Collateral (as so defined) to the extent perfection can be obtained
by filing Uniform Commercial Code financing statements, prior and superior to the rights of any
other Person, except for rights secured by Permitted Liens.




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




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




          9.1.20 Location of Real Property.




          (a) Upon delivery thereof on the Closing Date, Schedule 9.1.20(a) will set forth, as of the
Closing Date, a complete and correct list of all real property owned in fee by Holdings or any
Subsidiary and the legal description thereof. On the Closing Date, the Company will own in fee all
the real property set forth on Schedule 9.1.20(a).




          Upon delivery thereof on the Closing Date, Schedule 9.1.20(b) will set forth, as of the
Closing Date, a complete and correct list of all real property leased by Holdings or any Subsidiary
and the legal description thereof. On the Closing Date, the Company will have valid leasehold
interests in all the real property set forth on Schedule 9.1.20(b) .




          Upon delivery thereof on the Closing Date, Schedule 9.1.20(c) will set forth, as of the
Closing Date and to the knowledge of Holdings and the Subsidiaries, a complete and correct list of
all pipeline rights of way and easements appurtenant.




          9.1.21 Labor Matters. There are no strikes, lockouts or slowdowns against Holdings or
any Subsidiary pending or, to the knowledge of Holdings or any Subsidiary, threatened. The hours
worked by and payments made to employees of Holdings and the Subsidiaries have not been in
violation





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of the Fair Labor Standards Act or any other applicable federal, state, local or foreign law
relating to such matters, except where such violation could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. All payments due from Holdings or
any Subsidiary, or for which any claim may be made against Holdings or any Subsidiary, on account
of wages and employee health and welfare insurance and other benefits have been paid or accrued as
liabilities on the books of Holdings or such Subsidiary, except where the failure to do so could
not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. As of the Closing Date, neither Holdings nor any Subsidiary will be party to, or otherwise
bound by, any collective bargaining agreement.




          9.1.22 Solvency. Immediately after the consummation of the Transactions to occur on
the Closing Date, including the making of each Loan and the application of the proceeds of such
Loans, and after giving effect to the rights of subrogation and contribution hereunder and under
the Guarantee and Collateral Agreement, each Obligor is Solvent.




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




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




          9.1.25 Accounts. Agent may rely, in determining which Accounts are Eligible Accounts,
on all statements and representations made by Borrowers with respect thereto. Borrowers warrant,
with respect to each Account at the time it is shown as an Eligible Account in a Borrowing Base
Certificate, that:




          (a) it is genuine and in all respects what it purports to be, and is not evidenced by a
judgment;




          (b) it arises out of a completed, bona fide sale and delivery of goods or rendition of
services in the Ordinary Course of Business, and substantially in accordance with any purchase
order, contract or other document relating thereto;




          (c) it is for a sum certain, maturing as stated in the invoice covering such sale or rendition
of services, a copy of which has been furnished or is available to Agent on request;




          (d) it is not subject to any offset, Lien (other than Agent’s Lien and the Term Facility
Lien), deduction, defense, dispute, counterclaim or other adverse condition except as arising in
the Ordinary Course of Business and disclosed to Agent; and it is absolutely owing by the Account
Debtor, without contingency in any respect;




          (e) no purchase order, agreement, document or Applicable Law (other than the Assignment of
Claims Act) restricts assignment of the Account to Agent (regardless of whether, under the UCC, the
restriction is ineffective), and the applicable Borrower is the sole payee or remittance party
shown on the invoice;




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          (f) no extension, compromise, settlement, modification, credit, deduction or return has been
authorized with respect to the Account, except discounts or allowances granted in the Ordinary
Course of Business for prompt payment that are reflected on the face of the invoice related thereto
and in the reports submitted to Agent hereunder; and




          (g) to the best of Borrowers’ knowledge, (i) there are no facts or circumstances that are
reasonably likely to impair the enforceability or collectibility of such Account; (ii) the Account
Debtor had the capacity to contract when the Account arose, continues to meet the applicable
Borrower’s customary credit standards, is Solvent, is not contemplating or subject to an Insolvency
Proceeding, and has not failed, or suspended or ceased doing business; and (iii) there are no
proceedings or actions threatened or pending against any Account Debtor that could reasonably be
expected to have a material adverse effect on the Account Debtor’s financial condition.




          9.1.26 Intellectual Property. Holdings, each Borrower and each other Subsidiary owns
or has the lawful right to use all Intellectual Property necessary for the conduct of its business,
without conflict with any rights of others. There is no pending or, to Holdings or any Borrower’s
knowledge, threatened Intellectual Property Claim with respect to Holdings, any Borrower, any
Subsidiary or any of their Property (including any Intellectual Property) that has had or could
reasonably be expected to have a Material Adverse Effect. Except as disclosed on Schedule 9.1.26,
to the Obligors’ knowledge, on the Closing Date, and except as disclosed in writing to Agent from
time to time, neither Holdings nor any Borrower nor Subsidiary pays or owes any Royalty or other
compensation to any Person with respect to any Intellectual Property in any Fiscal Year in excess
of $100,000. All Intellectual Property owned or material Intellectual Property licensed by
Holdings, any Borrower or any other Subsidiary on the Closing Date is shown on Schedule 9.1.26.




          9.1.27 First Purchaser Liens. None of the Petroleum Product owned or purchased by the
Obligors is subject to a First Purchaser Lien except as the Obligors may have previously notified
the Agent in accordance with Section 10.1.5(i).




SECTION 10 COVENANTS AND CONTINUING AGREEMENTS




     10.1 Affirmative Covenants. As long as any Commitments or Obligations are
outstanding, Holdings and each Borrower covenants and agrees with the Lenders that, unless the
Required Lenders shall otherwise consent in writing:



          10.1.1 Existence; Businesses and Properties.




          (a) Holdings and each Subsidiary will do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence, except as otherwise expressly
permitted under Section 10.2.5.




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




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used in the conduct of its business and keep such property in good repair, working order and
condition and from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times, except where the failure
to do so could not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.




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




          10.1.2 Insurance.




          (a) Holdings and the Subsidiaries, at their expense and with financially sound and reputable
insurers with a Best’s Key Rating Guide rating of “A-” or better and a Best’s Insurance Guide and
Key Ratings minimum size rating of “X” (or other insurers of recognized responsibility satisfactory
to Agent), will maintain insurance adequately insuring their insurable properties at all times, and
will maintain or cause to be maintained such other insurance, to such extent and against such
risks, as is customary with companies in the same or similar businesses operating in the same or
similar locations or as required by law (including as to any Lender), but in any event containing
limits and coverage provisions set forth in Schedule 9.1.8 and otherwise complying with this
Section.




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




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




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




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





     (i) Each policy shall expressly provide that all provisions thereof, except the
liability limits (which shall be applicable to all insured parties as a group) and
liability for premiums (which shall be liabilities solely of Holdings or one or more
of its Affiliates) shall operate in the same manner as if there were a separate
policy covering each such insured party. All policies in respect of property
damage, machinery breakdown and business interruption shall include a customary
non-vitiation clause



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reasonably acceptable to Agent, which shall protect the interest of Agent, the
Lenders and the other Secured Parties regardless of any breach or violation by
Holdings, any Subsidiary or any other Affiliate of Holdings of warranties,
declarations or conditions contained in such policies, any action or inaction of
Holdings, any Subsidiary, any other Affiliate of Holdings or any other Person, or
any foreclosure relating to the Krotz Springs Refinery or any change in ownership of
all or any portion of the Krotz Springs Refinery.




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




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



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




          (g) Upon request by Agent or Holdings, the Borrowers will promptly furnish to Agent copies of
all insurance policies, binders and cover note or other evidence of insurance required under this
Section. Holdings and the Subsidiaries will provide to Agent such further evidence as to the
satisfaction of the requirements set forth in this Section, and will execute such further documents
and instruments and take such further actions to cause the requirements of this Section to be and
remain satisfied at all times, as Agent may reasonably request, all at the expense of the Obligors.




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




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




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




          (k) Each of Holdings and each Borrower hereby irrevocably makes, constitutes and appoints the
Agent (and all officers, employees or agents designated by the Agent) as Holdings’ or the
Borrowers’, as the case may be, true and lawful agent (and attorney-in-fact) for the purpose, after
the occurrence and during the continuance of an Event of Default, of making, settling and adjusting
claims in respect of Collateral under policies of insurance, endorsing the name of Holdings or any
Borrower, as the case may be, on any check, draft, instrument or other item of payment for the
proceeds of such policies and for making all determinations and decisions with respect thereto.




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




          10.1.4 Financial and Other Information.




          (a) Holdings and the Borrowers will furnish to Agent, in form satisfactory to the Agent, for
distribution, where applicable, to the Lenders:





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




     (ii) within 45 days after the end of each month (or, in the case of the month
ending on September 30, 2008, within 60 days after the end of such month), the
Company’s consolidated and consolidating balance sheet and related consolidated and
consolidating statements of income and cash flows, showing the financial condition
of



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




     (iii) concurrently with each delivery of financial statements under clause
(i) or (ii) above, a completed certificate signed by a Financial Officer of each of
Holdings and the Company, (A) certifying that no Default or Event of Default has
occurred or, if a Default or Event of Default has occurred, specifying the nature
and extent thereof and any corrective action taken or proposed to be taken with
respect thereto, (B) stating whether any change in GAAP or in the application
thereof has occurred since the date of the consolidated balance sheet of the Company
most recently theretofore delivered under clause (i) or (ii) above to the extent
such change is applicable to the financial statements delivered under
clause (i) or (ii) above, and, if any such change has occurred, specifying the
effect of such change on the financial statements (including those for the prior
periods) accompanying such certificate, (C) certifying that all notices required to
be provided under Sections 10.1.5 and 10.1.10 have been provided and (iv) in the
case of any delivery of financial statements under clause (i) above or under clause
(ii) above with respect to the last month of a Fiscal Quarter of the Company ending
on September 30, 2010 or on June 30 of any year, setting forth reasonably detailed
calculations of Excess Cash Flow (as defined in the Term Loan Agreement) for the
Sweep Period (as defined in the Term Loan Agreement) ended on such date;




     (iv) concurrently with the delivery of the financial statements under clause
(ii) above, a Compliance Certificate of a Financial Officer of the Company:




(A) certifying that no Default or Event of Default has occurred or, if a
Default or Event of Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with respect
thereto;




(B) certifying that (1) all Royalties due and payable under all
Licenses and (2) all rent and other amounts due and payable under all leases
have, in each case, been paid in full; and




(C) setting forth in reasonable detail (1) the calculations required to
establish whether or not a Low Availability Trigger Date occurred during the
subject month and whether or not a Low Availability Period should have been
instituted during the subject month; (2) the calculations required to
establish the Fixed Charge Coverage Ratio for the most recently ended
Four-Quarter Period and that the Obligors were in compliance Section 10.2.14
for the year-to-date period ending on the last day of the subject month and
(3) the aggregate amount of all Bank Product Debt and a list of all Bank
Products as of the end of the subject month.




     (v) within 90 days after the end of each Fiscal Year of the Company, a
certificate of a Senior Officer of each of Holdings and the Company and, except
where it is not reasonably practical to obtain such a report, a report of an
independent insurance broker, signed by an officer of such broker, each setting
forth the insurance then



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maintained by or on behalf of Holdings and the Subsidiaries (identifying
underwriters, carriers, the type of insurance and the insurance limits) and stating
that in their opinion such insurance complies with the terms of Section 10.1.2,
together with evidence of payment of the premiums then due thereon;




     (vi) within 90 days after the end of each Fiscal Year of the Company, a
certificate of a Senior Officer of each of Holdings and the Company setting forth
(A) all Equity Interests, debt securities and promissory notes or any other
instrument evidencing any such debt securities owned by any Obligor and (B) all
commercial tort claims in respect of which a complaint or a counterclaim has been
filed by any Obligor and that, in each case, (1) if so owned or filed by a Obligor
as of the Closing Date would have been required to be disclosed pursuant to the
terms of the Security Documents and (2) have not been set forth on a certificate
previously delivered pursuant to this clause;




     (vii) no sooner than sixty (60) days and not later than thirty (30) days prior
to the beginning of each Fiscal Year, an annual budget (to include forecasted
consolidated and consolidating balance sheets, income statements and cash flow
statements) for Holdings and its Subsidiaries as at the end of and for each quarter
of such Fiscal Year and setting forth the assumptions used for purposes of preparing
such budget) and, promptly after the same become available, any significant
revisions to such budget;




     (viii) so long as average daily Availability for any month is less than
$40,000,000, not later than seven days after the end of each week, an operating
forecast in form and substance reasonably satisfactory to Agent setting forth the
Borrowers’ working capital accounts, including a detailed calculation of the
Borrowing Base and available cash, prepared on a daily basis for the following two
week period;




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




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




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




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



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     (xiii) promptly after a request therefor, a certified listing of each Obligor’s
trade payables, specifying the trade creditor and balance due, and a detailed trade
payable aging, all in form reasonably satisfactory to Agent;




     (xiv) promptly after a request therefor, copies of all existing agreements, and
promptly after execution thereof provide Agent with copies of all future agreements,
between an Obligor and any landlord, warehouseman, processor, shipper, bailee or
other Person that owns any premises at which any material portion of ABL Priority
Collateral may be kept or that otherwise may possess or handle any material amount
of ABL Priority Collateral or documents or records relating to ABL Priority
Collateral;




     (xv) if requested by the Agent, a list, certified by an officer of the
applicable Obligor, of Holdings’ and each Borrower’s suppliers of Petroleum Product
and such information about such suppliers and source of such Inventory as the Agent
may reasonably request;




     (xvi) notice of any material change in its accounts payable practices from
those in effect on the Closing Date; and




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



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




          (c) Obligors hereby authorize Agent:





     (i) At reasonable times and upon reasonable advance notice and the provision of
an opportunity for a representative of Holdings and the Borrower Agent to
participate or accompany the Agent, to communicate directly with its and Holdings’
certified public accountants and, by this provision, authorize those accountants to
disclose to the Agent any and all financial statements and other supporting
financial documents and schedules relating to the Obligors and their respective
Subsidiaries, and to discuss directly with the Agent the finances and affairs of the
Obligors and their respective Subsidiaries; and




     (ii) to communicate directly with Parent and, if Parent’s public accountants
are different from Holdings’ public accountants, with Parent’s certified public
accountants, subject to satisfaction of the following conditions: (A) the Agent
shall provide written notice of its desire to communicate with Parent’s certified
public



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accountants; (B) Parent shall arrange for a mutually acceptable time and, if
necessary, place for any such communications, such date to be not greater than seven
Business Days following any such written notice to Parent under clause (A) above,
or, if such certified public accountants are not available until some time following
seven Business Days, on the first date on which such accountants are available; and
(C) a representative of Parent shall be permitted to participate or accompany the
Agent in connection with any such communications; provided that if Parent fails to
arrange any such meeting, the Agent may contact Parent’s accountant’s directly. The
Obligors hereby direct Parent to provide the Agent with access in accordance with
the foregoing to Parent’s certified public accountants and authorize those
accountants to disclose to the Agent any and all financial statements and other
supporting financial documents and schedules relating to Parent to the extent
affecting Holdings, the Obligors and their respective Subsidiaries, and to discuss
directly with the Agent the finances and affairs of Parent to the extent affecting
Holdings, the Obligors and their respective Subsidiaries.



          10.1.5 Litigation and Other Notices. Holdings and the Borrowers will furnish to Agent
prompt written notice of the following:




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




          (b) (i) the filing or commencement of, or Holdings or any Subsidiary obtaining any knowledge,
including of any threat or notice of intention of any Person to file or commence, any action, suit
or proceeding, including any Intellectual Property Claim, whether at law or in equity or by or
before any Governmental Authority, against Holdings or any Subsidiary or other Affiliate thereof,
(ii) any pending or threatened labor dispute, strike or walkout, or the expiration of any material
labor contract, or (iii) any default under or termination of a Material Contract, in each case,
that could reasonably be expected to result in a Material Adverse Effect;




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




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




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




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




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          (g) (i) the discharge of or any withdrawal or resignation by Borrowers’ independent
accountants; or (ii) any acquisition or creation of a new office or place of business, at least 30
days prior to such opening or such shorter period as the Agent may agree;




          (h) any purchase of Petroleum Product from a Person who may be the beneficiary of a First
Purchaser Lien or may belong to the class of Persons intended to be protected by a statute or other
law providing for a First Purchaser Lien, at least five (5) Business Days before the initial
purchase from such Person; and




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




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




          10.1.6 Maintaining Records; Access to Properties and Inspections; Maintenance of
Ratings.




          (a) Holdings and each Subsidiary will keep proper books of record and account in which full,
true and correct entries in conformity with GAAP and all requirements of law are made of all
dealings and transactions in relation to its business and activities.




          (b) Holdings and each Subsidiary will permit any representatives designated by Agent or any
Lender to visit and inspect the financial records and the properties of such Person during regular
business hours upon reasonable prior notice and as often as reasonably requested and to make
extracts from and copies of such financial records, and permit any representatives designated by
Agent or any Lender to discuss the affairs, finances and condition of such Person with the officers
thereof and independent accountants therefor; provided, that Holdings and each Subsidiary will
reimburse Agent for all charges, costs and expenses of Agent in connection with (i) during the
first Loan Year, up to two examinations of any Obligor’s books and records or any other financial
or Collateral matters as Agent deems appropriate; and (ii) during each subsequent Loan Year, so
long as no Default or Event of Default has occurred and is continuing, (A) if at no time during
such Loan Year has average daily Availability for any month been less than $100,000,000, then not
more than one (1) such examination in such Loan Year and (B) if average daily Availability for any
month has been less than $100,000,000 at no time during such Loan Year, then not more than two
(2) such examination in such Loan Year.




          (c) If an Event of Default has occurred and is continuing (i) Agent shall not be required to
provide advance notice of any such examination to the Borrowers or any other Obligor or conduct any
such examination during normal business hours, (ii) any such examination commenced at any time
during which an Event of Default has occurred and is continuing shall not be counted as one of the
examinations described in Section 10.1.6(b) above (even if the Event of Default ceases to be
continuing during the course of such examination), and (iii) any costs incurred by the Agent in
connection with such examinations shall be paid in full by the Obligors (which cost reimbursement
shall apply even if the Event of Default ceases to be continuing during the course of an
examination). Subject to and without limiting the foregoing, Obligors specifically agree to pay
Agent’s then standard charges for each day that an employee of Agent or its Affiliates is engaged
in any examination activities, and shall pay the standard charges of Agent’s outside appraisal
group.




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          (d) Neither Agent nor any Lender shall have any duty to Holdings or any Borrower to make any
inspection or examination, nor to share any results of any inspection, examination, appraisal or
report with Holdings or any Borrower. Holdings and Borrowers acknowledge that all inspections,
appraisals and reports are prepared by Agent and Lenders for their purposes, and Holdings and
Borrowers shall not be entitled to rely upon them.




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




          10.1.7 Use of Proceeds. The Borrowers will use the proceeds of the Loans only for the
purposes specified in Section 2.1.3.




          10.1.8 Senior Indebtedness Designation. In the event that Holdings or any Subsidiary
shall at any time issue or have outstanding any Indebtedness that by its terms is subordinated to
any other Indebtedness of Holdings or such Subsidiary, Holdings or such Subsidiary, as applicable,
will take all actions necessary to cause the Obligations to constitute senior indebtedness (however
denominated) in respect of such subordinated Indebtedness and to enable the Lenders or an agent on
their behalf to exercise any payment blockage or other remedies available or potentially available
to lenders of senior indebtedness under the terms of such subordinated Indebtedness. Without
limiting the foregoing, the Obligations are hereby designated as “senior indebtedness” and, to the
extent applicable, as “designated senior indebtedness” in respect of all such subordinated
Indebtedness and are further given all such other designations as shall be required under the terms
of any such subordinated Indebtedness in order that the Lenders or an agent on their behalf may
exercise any payment blockage or other remedies available or potentially available to lenders of
senior indebtedness under the terms of such subordinated Indebtedness.




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




          10.1.10 Additional Subsidiaries. If any Subsidiary is formed or acquired after the
Closing Date, Holdings and the Company will, as promptly as practicable and in any event within 30
days (or such longer period as Agent may agree to in writing) after such formation or acquisition,
notify Agent thereof and cause such Subsidiary to either (a) be joined as a party to this Agreement
and the other applicable Loan Documents as a Borrower by delivery of a joinder agreement or (b)
become a Guarantor hereunder by execution and delivery of a Guarantee and Collateral Agreement
and, in either case, execute and delivery such Loan Documents and other documents as Agent may
reasonably request, and take such other actions as Agent shall require to evidence and perfect a
Lien in favor of Agent (for the benefit of Secured Parties) on all assets of such Subsidiary and
any Equity Interests issued by such Subsidiary consistent with the terms of this Agreement,
including delivery of such Mortgages, Deposit Account Control Agreements and legal opinions as it
shall deem appropriate, all in form and substance acceptable to Agent.




          10.1.11 Compliance with Law; Maintenance of Licenses. Each Obligor shall comply, and
shall cause each of its Subsidiaries to comply, in all material respects with all Applicable Laws
(including the Federal Fair Labor Standards Act, all Environmental Laws, and, to the extent
applicable to such Obligor or its Subsidiaries, the Sarbanes-Oxley Act). Each Obligor shall, and
shall cause each of its Subsidiaries to, obtain and maintain all material licenses, permits,
franchises, and governmental authorizations necessary to own its property and to conduct its
business as conducted on the Closing Date. To the extent applicable to the Obligors, the Obligors
shall cause their principal executive officers and principal financial officers (or other
individuals performing similar functions) to comply in all material respects with all provisions of
the Sarbanes-Oxley Act.




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          10.1.12 Environmental Laws.




          (a) Each Obligor shall, and shall cause each of its Subsidiaries to, conduct its business in
material compliance with all Environmental Laws applicable to it, including those relating to the
generation, handling, use, storage, and disposal of any Hazardous Material. Each Obligor shall,
and shall cause each of its Subsidiaries to, take prompt and appropriate action to respond to any
material non-compliance with Environmental Laws and shall regularly report to the Agent on such
response.




          (b) Without limiting the generality of the foregoing, the Obligors shall submit to the Agent
and the Lenders (i) annually on each anniversary of the Closing Date, an update of the status of
each such environmental material non-compliance or liability issue, and (ii) within 5 Business Days
after receipt thereof, a copy of any environmental audits or reports delivered or deliverable to
the Term Loan Agent that relate to the Collateral. The Agent may request copies of technical
reports prepared by the Obligors and their communications with any Governmental Authority to
determine whether the Obligors or any of their Subsidiaries are proceeding reasonably to correct,
cure, or contest in good faith any alleged non-compliance or environmental liability. If requested
by the Agent following an alleged material non-compliance with Environmental Laws, or upon the
Agent having a reasonable belief that any such material non-compliance with Environmental Laws may
exist, the Obligors shall, at the Agent’s request and at the Obligors’ expense: (1) retain an
independent environmental engineer acceptable to the Agent to evaluate the site, including tests if
appropriate, where the material non-compliance or alleged material non-compliance with
Environmental Laws has occurred and prepare and deliver to the Agent, in sufficient quantity for
distribution by the Agent to the Lenders, a report setting forth the results of such evaluation, a
proposed plan for responding to any environmental problems described therein, and an estimate of
the costs thereof; and (2) provide to the Agent a supplemental report of such engineer whenever the
scope of the environmental problems, or the response thereto or the estimated costs thereof, shall
increase in any material respect.




          (c) At any time during the continuance of an Event of Default, and at any other time during
which the Obligors have not complied with the requirements of clause (b) above, the Agent and its
representatives will have the right at any reasonable time to enter and visit the Real Estate and
any other place where any property of the Obligors is located for the purposes of observing the
Real Estate, taking and removing soil or groundwater samples, and conducting tests on any part of
the Real Estate, all at the Obligors’ expense. The Agent is under no duty, however, to visit or
observe the Real Estate or to conduct tests, and any such acts by the Agent will be solely for the
purposes of protecting the Agent’s Liens and preserving the Agent and the Lenders’ rights under the
Loan Documents. No site visit, observation, or testing by the Agent and the Lenders will result in
a waiver of any default of the Obligors or impose any liability on the Agent or the Lenders. In no
event will any site visit, observation, or testing by the Agent be a representation that hazardous
substances are or are not present in, on, or under the Real Estate, or that there has been or will
be compliance with any Environmental Law. Neither any Obligor nor any of its Subsidiaries nor any
other party is entitled to rely on any site visit, observation, or testing by the Agent. The Agent
and the Lenders owe no duty of care to protect the Obligors or any other party against, or to
inform the Obligors or any other party of, any Hazardous Materials or any other adverse condition
affecting the Real Estate. The Agent may in its discretion disclose to the Obligors or to any
other party if so required by law any report or findings made as a result of, or in connection
with, any site visit, observation, or testing by the Agent. The Obligors understand and agree that
the Agent makes no warranty or representation to the Obligors or any other party regarding the
truth, accuracy, or completeness of any such report or findings that may be disclosed. The
Obligors also understand that depending on the results of any site visit, observation, or testing
by the Agent and disclosed to the Obligors, the Obligors may have a legal obligation to notify one
or more environmental agencies of the results. The Obligors also understand that such reporting
requirements are site-specific and are to be evaluated by the Obligors without advice or assistance
from the Agent. In each instance, the Agent will give the Obligors reasonable notice before
entering the Real Estate or any other place the Agent is




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permitted to enter under this Section. The Agent will make reasonable efforts to avoid
interfering with the Obligors’ use of the Real Estate or any other property in exercising any
rights provided hereunder and will repair any damage to the Real Estate or any other property of
the Obligors caused by the Agent in exercising any rights, ordinary wear and tear excepted.




          10.1.13 Landlord and Storage Agreements. Upon request, provide Agent with copies of
all existing agreements, and promptly after execution thereof provide Agent with copies of all
future agreements, between an Obligor and any landlord, warehouseman, processor, shipper, bailee or
other Person that owns any premises at which any Collateral may be kept or that otherwise may
possess or handle any Collateral.




          10.1.14 Supporting Letter of Credit. The Borrowers shall deliver or cause to be
delivered to the Agent and shall maintain the Supporting Letter of Credit in an aggregate stated
amount of at least $40,000,000 on terms acceptable to Agent; provided, that such Supporting Letter
of Credit may be reduced or terminated after the Closing Date at any time all of the following
conditions are satisfied: (a) no Default or Event of Default has occurred and is continuing,
(b) Agent has received satisfactory results of its initial post-closing field examination of
Holdings and the Company, (c) the Revolver Commitment of Bank of America has been successfully
syndicated (with Bank of America achieving its targeted hold level described in the Fee Letter),
and (d) average daily Availability for the most recently ended month is greater than $40,000,000
after giving pro forma effect to such reduction or termination.




     10.2 Negative Covenants. As long as any Commitments or Obligations are outstanding,
each of Holdings and each Borrower covenants and agrees with the Lenders that, unless the Required
Lenders shall otherwise consent in writing:



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




          (a) Indebtedness created under the Loan Documents;




          (b) Indebtedness created under the Term Loan Agreement, or Refinancing Indebtedness in respect
thereof, in an aggregate principal amount at any time outstanding not to exceed the difference of
(i) $302,000,000 less (ii) 100% of all scheduled payments made of the principal amount thereof
(other than payments from proceeds of Refinancing Indebtedness) and 25% of all prepayments made of
the principal amount thereof (other than prepayments from proceeds of Refinancing Indebtedness)
(the “Permitted Term Loan Facility”);




          (c) Indebtedness set forth on Schedule 10.2.1, but not any extensions, renewals or
replacements of any such Indebtedness;




          (d) Indebtedness of any Borrower to any other Borrower; provided, that such Indebtedness shall
not have been transferred to any other Person (other than another Borrower);




          (e) Guarantees
incurred in compliance with Section 10.2.4(f);




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




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          (g) Indebtedness of any Person that becomes a Subsidiary of Holdings (or of any Person not
previously a Subsidiary of Holdings that is merged or consolidated with or into a Subsidiary of
Holdings in a Permitted Acquisition) after the date hereof, or Indebtedness of any Person that is
assumed by any such Subsidiary in connection with an Acquisition of assets by such Subsidiary in a
Permitted Acquisition; provided that (i) such Indebtedness exists at the time such Person becomes a
Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in
contemplation of or in connection with such Person becoming a Subsidiary (or such merger or
consolidation) or such assets being acquired, (ii) the aggregate principal amount of Indebtedness
permitted by this clause (g) shall not exceed $15,000,000 at any time outstanding and (iii) neither
Holdings nor any Subsidiary (other than such Person or the Subsidiary with which such Person is
merged or consolidated or that so assumes such Person’s Indebtedness) shall Guarantee or otherwise
become liable for the payment of such Indebtedness;




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




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




          (j) any Holdings Subordinated Loans;




          (k) the Crack Spread Hedging Support LC;




          (l) the Debt Service Support LC; and




          (m) so long as no Low Availability Period shall exist at the time of incurrence thereof or
arise as a result thereof immediately after such incurrence, any other unsecured Indebtedness of
the Company and the other Subsidiaries.




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




          (a) Liens created under the Loan Documents;




          (b) Permitted Encumbrances;




          (c) any Lien on any asset of Holdings or any Subsidiary (or of the Acquired Company and its
Affiliates) existing on the Closing Date and set forth on Schedule 10.2.2; provided, that (A) such
Lien shall not apply to any other asset of Holdings or any Subsidiary and (B) such Lien shall
secure only those obligations that it secures on the Closing Date;




          (d) Liens on fixed or capital assets acquired, constructed or improved by the Company or any
other Subsidiary; provided, that (A) such Liens secure Indebtedness permitted by Section 10.2.1(f),
(B) such Liens and the Indebtedness secured thereby are incurred prior to or within 180 days after
such acquisition or the completion of such construction or improvement, (C) the Indebtedness
secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or
capital assets and (D) such Liens shall not apply to any other asset of Holdings or any Subsidiary;




          (e) any Lien existing on any asset prior to the Acquisition thereof by the Company or any of
its Subsidiaries; provided that (A) such Lien is not created in contemplation of or in connection





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with such Acquisition, (B) such Lien shall not apply to any other asset of Holdings or any
Subsidiary and (C) such Lien shall secure only those obligations that it secures on the date of
such Acquisition;




          (f) Liens created under the Term Loan Documents or any other definitive documentation for the
Permitted Term Loan Facility; provided, that (A) such Liens secure only Indebtedness permitted by
Section 10.2.1(b) and other obligations thereunder not constituting Indebtedness, (B) such Liens do
not apply to any asset of Holdings or any Subsidiary other than assets that constitute Collateral
(other than Excluded Deposit Accounts and cash held therein and all securities, securities
entitlements, investment property and financial assets arising therefrom) and that are subject to a
Lien granted under a Security Document to secure the Obligations and (C) such Liens are subject to
the terms of the Intercreditor Agreement;




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




          (h) Liens on the Debt Service Support Cash Collateral to secure obligations of the Company
under the Debt Service Support LC; provided, that the aggregate principal amount of the Debt
Service Support Cash Collateral subject to the Liens permitted by this clause (h) shall not exceed
105% of the stated amount of the Debt Service Support LC; and




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




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




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




          10.2.4 Investments, Loans, Advances, Guarantees and Acquisitions. Neither Holdings
nor any Subsidiary will purchase, hold, acquire (including pursuant to any merger or consolidation
with any Person that was not a Wholly Owned Subsidiary prior thereto) assets acquired other than in
the Ordinary Course of Business that, following the acquisition thereof, would constitute a
substantial portion of the assets of Holdings and the Subsidiaries, taken as a whole, or make or
otherwise permit to exist any Investment in any other Person or any Acquisition, except:




          (a) Permitted Acquisitions;




          (b) Investments in Permitted Investments;




          (c) Investments existing on the Closing Date and set forth on Schedule 10.2.4 (but not any
additions thereto (including any capital contributions) made after the Closing Date);




          (d) Investments by Holdings in the Equity Interests of the Borrower and Investments by the
Borrower and the other Subsidiaries in the Equity Interests of their respective Subsidiaries;
provided, that (i) such Subsidiaries are Subsidiaries prior to such Investments and (ii) any such
Equity Interests held by any Obligor shall be pledged pursuant to this Agreement;




          (e) loans or advances made by the Company or any other Subsidiary to any Subsidiary; provided,
that the Indebtedness resulting therefrom is permitted by Section 10.2.1(d);




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          (f) Permitted Guarantees and Guarantees by Holdings or any Subsidiary of Indebtedness or other
obligations of Holdings or any other Obligor; provided, that (i) a Subsidiary that is not also a
Borrower hereunder shall not Guarantee any Indebtedness or other obligations under or pursuant to
the Term Loan Facility, (ii) Holdings shall not Guarantee any Indebtedness or other obligations of
any Subsidiary except for any such Guarantees under the Loan Documents or under the definitive
documentation for the Permitted Term Loan Facility and (iii) no Subsidiary shall Guarantee any
Indebtedness or other obligation of Holdings except for any such Guarantees under the Loan
Documents or under the definitive documentation for the Permitted Term Loan Facility;




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




          (h) Investments made as a result of the receipt of noncash consideration from a sale,
transfer, lease or other disposition of any asset in compliance with Section 10.2.6;




          (i) Investments in the form of Hedging Agreements permitted by Section 10.2.7;




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




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




          (l) purchases of crude oil and other inventory, supplies and materials in the Ordinary Course
of Business; and




          (m) other Investments (other than Permitted Acquisitions); provided, that, at the time each
such Investment is purchased or made, no Low Availability Period shall exist before or immediately
after giving pro forma effect thereto.




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




          10.2.6 Asset Sales. Neither Holdings nor any Subsidiary will sell, transfer, lease or
otherwise dispose of (it being understood that a Casualty to, or a Condemnation of, any asset shall
not be deemed to be a disposition thereof) any asset, including any Equity Interest owned by it,
nor will any Subsidiary issue any additional Equity Interest in such Subsidiary (other than to
Holdings or any other
Subsidiary in compliance with Sections 10.2.4 and 10.2.10) (each of the foregoing, an
“Asset Disposition”), except:




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




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




          (c) issuances and sales by the Company of its common stock to management or employees of the
Company or any of its Subsidiaries under any employee stock option or stock purchase plan or
employee benefit plan (the common stock so issued and sold in compliance with this clause (c) being
referred to as the “Permitted Compensation Incentive Equity Interests”); provided that the
Permitted Compensation Incentive Equity Interests (i) shall have no voting rights and (ii) shall
not, at any time, represent more than 5.0% of aggregate equity value represented by the issued and
outstanding common stock of the Company; and




          (d) sales, transfers and other dispositions of assets (other than Equity Interests in any
Subsidiary) that are not permitted by any other clause of this Section; provided, that (i) no
Default or Event of Default exists at the time of or would be created by such Asset Disposition,
(ii) the aggregate fair market value of all assets sold, transferred or otherwise disposed of in
reliance on this clause shall not exceed $5,000,000 in the aggregate and (iii) all sales, transfers
and other dispositions made in reliance on this clause shall be made for fair value and at least
75% cash consideration.




          10.2.7 Hedging Agreements.




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




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




          10.2.8 Restricted Payments; Certain Payments of Indebtedness; Payments under the Earnout
Agreement.




          (a) Neither Holdings nor any Subsidiary will declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise)
to do so, except that





     (i) any Subsidiary (other than the Company) may declare and pay dividends or
make other distributions with respect to its capital stock, partnership or
membership interests or other similar Equity Interests, ratably to the holders of
such Equity Interests;




     (ii) the Company may make Restricted Payments (including through redemption or
repurchase of such Equity Interests) on account of Permitted Compensation Incentive
Equity Interests, in an amount not exceeding $2,000,000 in the aggregate for any
Fiscal Year, as such amount may be increased pursuant to the
immediately following proviso (the “Annual Compensation Incentive
Amount”), pursuant to and in accordance with any employee stock option or stock
purchase plan or



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employee benefit plan for management or employees of the Company or
any of its Subsidiaries adopted by the board of directors of the Company or such
Subsidiary; provided that, to the extent the Annual Compensation Incentive Amount
for any Fiscal Year exceeds the aggregate amount of Restricted Payments made under
this clause (ii) during such Fiscal Year, the Annual Compensation Incentive Amount
for the immediately succeeding Fiscal Year shall be increased by the amount of such
excess; provided further, however, that the amount of Restricted Payments made under
this clause (ii) shall not exceed $7,000,000 in the aggregate;




     (iii) so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (A) the Company may make payments in cash to
Holdings on account of Parent’s corporate expense allocation to Holdings and its
Subsidiaries, the amount of such payments not to exceed (1) $17,500,000 in the
aggregate for the period from the Closing Date to June 30, 2009, (2) $17,500,000 in
the aggregate for the period from July 1, 2009 to June 30, 2010 and (3) $7,000,000
in the aggregate for each period of 12 consecutive months commencing on July 1 of
any year (beginning with July 1, 2010) and ending on June 30 of the immediately
following year (with the Company hereby agreeing to provide to the Agent, upon
request, reasonable detail as to such corporate expense allocation), and (B)
Holdings may make payments to Parent and its Affiliates in cash in an aggregate
amount not exceeding the aggregate amount of the payments received by Holdings from
the Company pursuant to the foregoing clause (A);




     (iv) so long as no Low Availability Period shall exist before and after giving
pro forma effect thereto, (A) the Company may make payments in cash to Holdings and
(B) Holdings may declare, make or pay Restricted Payments in cash in an aggregate
amount not exceeding the aggregate amount of dividends received by Holdings from the
Company pursuant to the foregoing clause (A); and




     (v) Holdings may make payments permitted pursuant to Section 10.2.8(b)(iv)



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





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




     (ii) regularly scheduled interest and principal payments as and when due in respect of
any Indebtedness (other than Holdings Subordinated Loans or the Permitted Term Loan
Facility);




     (iii) (A) regularly scheduled interest and principal payments in respect of the
Permitted Term Loan Facility, (B) mandatory prepayments under the Permitted Term Loan
Facility made with proceeds of a Prepayment Event (as defined in the Term Loan Agreement on
the date hereof) and (C) other mandatory prepayments and voluntary prepayments under the
Permitted Term Loan Facility; provided that at the time of any such payment pursuant to the
foregoing clause (C), (1) no Default under (x) Section 10.1.4(a)(i) or (ii) or (y) Section
11.1(j) in respect of any involuntary Insolvency Proceeding concerning any Obligor
(collectively, the
“Specified Defaults”) shall have occurred and be continuing, (2) no Event of
Default shall have occurred and be continuing, (3) immediately before and immediately after
giving pro forma



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effect thereto, Availability for the most recently ended month shall be
greater than 10% of the total Revolver Commitments (the “Availability Threshold”),
and (4) the Agent shall have received a certificate of a Financial Officer of the Borrower
Agent stating that the conditions set forth in clauses (1), (2) and (3) hereof have been
satisfied (together with pro forma calculations for item (3)); provided further, that any
payment of Excess Cash Flow (as defined in the Term Loan Agreement) under the Term Loan
Agreement that is prohibited from being made hereunder maybe made at such future time to
the extent that Availability exceeds the Availability Threshold and no Specified Default or
Event of Default has occurred and is continuing and a certificate substantially the same as
required by clause (4) above shall have been received by the Agent; and provided further,
that for the purposes of this Section 10.2.8(b)(iii) only, notwithstanding Section 1.4,
Specified Defaults and Events of Default shall cease to be continuing upon cure of such
Specified Default or Event of Default and the passage of five (5) Business Days thereafter
(the “Remedy Period”), it being understood that any cure of such Specified Default or Event
of Default shall have no effect on any remedy exercised by the Agent during such Remedy
Period.




     (iv) so long as no Low Availability Period shall exist immediately after giving pro
forma effect thereto interest and principal payments in respect of Holdings Subordinated
Loans, to the extent not prohibited by the Holdings Subordination Agreement;




     (v) refinancings of Indebtedness to the extent permitted by Section 10.2.1; and




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



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




          10.2.9 Transactions with Affiliates.




          (a) Neither Holdings nor any Subsidiary will sell, lease, license or otherwise transfer any
assets to, or purchase, lease, license or otherwise acquire any assets from, or otherwise engage in
any other transactions with, any of its Affiliates (including Parent), except (i) transactions in
the Ordinary Course of Business that are at prices and on terms and conditions not less favorable
to Holdings or such Subsidiary than those that would prevail in arm’s-length transactions with
unrelated third parties, (ii) transactions between or among the Subsidiaries not involving any
other Affiliate, (iii) any Restricted Payment permitted by Section 10.2.8, (iv) compensation and
indemnification of, and other employment arrangements with, directors, officers and employees of
Holdings or any Subsidiary entered in the Ordinary Course of Business, (v) Investments permitted
under Section 10.2.4(d) and (vi) loans and advances permitted under Sections 10.2.4(j) and
10.2.4(k).




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




          10.2.10 Business of Holdings and Subsidiaries.




          (a) Notwithstanding anything herein to the contrary, Holdings (i) will not engage in any
business or activity other than the ownership of the outstanding Equity Interests in the Company
and



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activities incidental thereto and (ii) will not own or acquire any assets (other than Equity
Interests in the Company, cash and Permitted Investments) or incur any liabilities (other than
Indebtedness permitted to be incurred by it under Section 10.2.1, liabilities imposed by law,
including liabilities in respect of Taxes, and other liabilities incidental to its existence and
permitted business and activities).




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




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




          10.2.12 Amendment of Material Documents. Neither Holdings nor any Subsidiary will:




          (a) (i) amend, restate, supplement or otherwise modify its certificate of incorporation,
bylaws or other organizational documents, or (ii) amend, restate, supplement or otherwise modify,
or waive any of its rights under, or terminate or release, the Stock Purchase Agreement or the
Offtake Agreement, in each case to the extent any of the foregoing could reasonably be expected to
be adverse in any material respect to Holdings and the Subsidiaries or to the interests of the
Agent or the Lenders, or




          (b) amend, restate, supplement or otherwise modify any Term Loan Document or any other
definitive documentation for the Permitted Term Loan Facility, to the extent any of the foregoing
could reasonably be expected to materially impair (i) the rights of or benefits available to the
Lenders under any Loan Document in respect of any payment obligation of any Obligor thereunder or
(ii) or the ability of any Obligor to perform any of its material obligations under any Loan
Document.




          10.2.13 Fixed Charge Coverage Ratio. During the existence of any Low Availability
Period, the Borrowers will not permit the Fixed Charge Coverage Ratio to be less than 1.10 to 1.00
for (a) the Four-Quarter Period most recently ended prior to such Low Availability Period or (b)
for any Four-Quarter Period ending during such Low Availability Period.




          10.2.14 Capital Expenditures.




          (a) During the period from the Closing Date to December 31, 2008 (the “Subject Period”),
neither Holdings nor any Subsidiary will make any Capital Expenditures during any Low
Availability Period if, after giving effect thereto, the aggregate amount of Capital
Expenditures made during the Subject Period would exceed $15,000,000 in the aggregate.




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          (b) During the period from January 1, 2009 through December 31, 2009 and for each Fiscal Year
thereafter, neither Holdings nor any Subsidiary will make any Capital Expenditures during any Low
Availability Period if, after giving effect thereto, the aggregate amount of Capital Expenditures
made during such Fiscal Year would exceed (i) $25,000,000 in the aggregate, or (ii) if routine
refinery turnaround is performed or scheduled to be performed during such Fiscal Year, $45,000,000
in the aggregate.




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




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




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




          10.2.18 Parent Credit Agreements.  Notwithstanding anything to the contrary set forth
herein, including in Sections 10.2.1 and 10.2.4, neither Holdings nor any Subsidiary will become a
party to, or otherwise create, incur, assume or permit to exist any Indebtedness (whether as a
principal obligor or a guarantor) of Holdings or any Subsidiary under the Existing Parent Term
Credit Agreement or Existing Parent Revolving Credit Agreement.




SECTION 11 EVENTS OF DEFAULT; REMEDIES ON DEFAULT




     11.1 Events of Default. Each of the following shall be an “Event of Default”
hereunder, if the same shall occur for any reason whatsoever, whether voluntary or involuntary, by
operation of law or otherwise:



          (a) A Borrower fails to pay any Obligations (other than Bank Product Obligations) when due
(whether at stated maturity, on demand, upon acceleration or otherwise);




          (b) Any representation, warranty or other written statement of an Obligor made in connection
with any Loan Documents is incorrect or misleading in any material respect when given or deemed
given pursuant to the terms of this Agreement;




          (c) An Obligor breaches or fails to perform (i) any covenant or agreement contained in
Sections 7.2, 8.1, 8.2.4, 8.2.5, 8.6.2(a), 10.1.1(a), 10.1.2, 10.1.7, 10.1.10 or 10.2 or (ii) any
covenant or agreement contained in Sections 10.1.4, 10.1.5 or 10.1.12 and such breach or failure is
not cured within 15 days after a Senior Officer of such Obligor has knowledge thereof or receives
notice thereof from Agent, whichever is sooner; provided, that such notice and opportunity to cure
shall not apply if the breach or failure to perform is not capable of being cured within such
period or is a willful breach by an Obligor;




          (d) An Obligor breaches or fails to perform any other covenant contained in any Loan Documents
(other than those set forth in clauses (a), (b) or (c) above), and such breach or failure is not
cured within 30 days after a Senior Officer of such Obligor has knowledge thereof or receives
notice thereof from Agent, whichever is sooner; provided, that such notice and opportunity to cure
shall not apply if the breach or failure to perform is not capable of being cured within such
period or is a willful breach by an Obligor;




          (e) A Guarantor repudiates, revokes or attempts to revoke its Guarantee of the Obligations; an
Obligor denies or contests the validity or enforceability of any Loan Documents or



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Obligations, or
the perfection or priority of any Lien granted to Agent; or any Loan Document ceases to be in full
force or effect for any reason (other than a waiver or release by Agent and Lenders);




          (f) Any breach by or default of an Obligor occurs under any Material Indebtedness, if the
maturity of or any payment with respect to such Indebtedness may be accelerated or demanded due as
a result of such breach and continues beyond any applicable grace period;




          (g) Any judgment or order for the payment of money is entered against an Obligor in an amount
that exceeds, individually or cumulatively with all unsatisfied judgments or orders against all
Obligors, $5,000,000 (net of any insurance coverage therefor acknowledged in writing by the insurer
without a reservation of rights), unless a stay of enforcement of such judgment or order is in
effect, by reason of a pending appeal or otherwise;




          (h) A loss, theft, damage or destruction occurs with respect to any Collateral if the amount
not covered by insurance exceeds $10,000,000;




          (i) (A) Any Obligor is enjoined, restrained or in any way prevented by any Governmental
Authority from conducting any material part of its business; (B) an Obligor suffers the loss,
revocation or termination of any material license, permit, lease or agreement necessary to its
business; (C) ceases operations of any material part of such Obligor’s business for a material
period of time (including as a result of any condemnation); an Obligor agrees to or commences any
liquidation, dissolution or winding up of its affairs; or an Obligor ceases to be Solvent;




          (j) An Insolvency Proceeding is commenced by an Obligor; an Obligor makes an offer of
settlement, extension or composition to its unsecured creditors generally; a trustee is appointed
to take possession of any substantial Property of or to operate any of the business of an Obligor;
or an Insolvency Proceeding is commenced against an Obligor and: the Obligor consents to
institution of the proceeding, the petition commencing the proceeding is not timely controverted by
the Obligor, the petition is not dismissed within 30 days after filing, or an order for relief is
entered in the proceeding;




          (k) An ERISA Event that in the opinion of the Required Lenders could reasonably be expected to
result in a Material Adverse Effect;




          (l) An Obligor or any of its Senior Officers is criminally indicted or convicted for (i) a
felony committed in the conduct of the Obligor’s business, or (ii) violating any state or federal
law (including the Controlled Substances Act, Money Laundering Control Act of 1986 and Illegal
Exportation of War Materials Act) that could lead to forfeiture of any material Property or any
Collateral; or




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




          (n) there shall have occurred any event or condition adversely affects the ability of the
Obligors to access any ExxonMobil Pipeline for the purpose of obtaining delivery of crude oil to
the Krotz Springs Refinery in each case that, in the opinion of the Required Lenders (taking into
consideration the alternative arrangements available to the Borrowers and the Subsidiaries with
respect to delivery of crude oil to and transportation of refined products from the Krotz Springs
Refinery), could reasonably be expected to result in a Material Adverse Effect; or




          (o) A Change of Control occurs.




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     11.2 Remedies upon Default. If an Event of Default described in Section
11.1(j) occurs with respect to any Borrower, then to the extent permitted by Applicable Law, all
Obligations shall become automatically due and payable and all Commitments shall terminate, without
any action by Agent or notice of any kind. In addition, or if any other Event of Default exists,
Agent may in its discretion (and shall upon written direction of Required Lenders) do any one or
more of the following from time to time:



          (a) declare any Obligations immediately due and payable, whereupon they shall be due and
payable without diligence, presentment, demand, protest or notice of any kind, including notice of
intent to accelerate and notice of acceleration, all of which are hereby waived by Borrowers to the
fullest extent permitted by law;




          (b) terminate, reduce or condition any Commitment, or make any adjustment to the Borrowing
Base;




          (c) require Obligors to Cash Collateralize LC Obligations, Bank Product Obligations and other
Obligations that are contingent or not yet due and payable, and, if Obligors fail promptly to
deposit such Cash Collateral, Agent may (and shall upon the direction of Required Lenders) advance
the required Cash Collateral as Revolver Loans (whether or not an Overadvance exists or is created
thereby, or the conditions in Section 6 are satisfied); and




          (d) exercise any other rights or remedies afforded under any agreement, by law, at equity or
otherwise, including the rights and remedies of a secured party under the UCC. Such rights and
remedies include the rights to (i) take possession of any Collateral; (ii) require Borrowers to
assemble Collateral, at Borrowers’ expense, and make it available to Agent at a place designated by
Agent; (iii) enter any premises where Collateral is located and store Collateral on such premises
until sold (and if the premises are owned or leased by a Borrower, Borrowers agree not to charge
for such storage); and (iv) sell or otherwise dispose of any Collateral in its then condition, or
after any further manufacturing or processing thereof, at public or private sale, with such notice
as may be required by Applicable Law, in lots or in bulk, at such locations, all as Agent, in its
discretion, deems advisable. Each Borrower agrees that 10 days notice of any proposed sale or
other disposition of Collateral by Agent shall be reasonable. Agent shall have the right to
conduct such sales on any Obligor’s premises, without charge, and such sales may be adjourned from
time to time in accordance with Applicable Law. Agent shall have the right to sell, lease or
otherwise dispose of any Collateral for cash, credit or any combination thereof, and Agent may
purchase any Collateral at public or, if permitted by law, private sale and, in lieu of actual
payment of the purchase price, may set off the amount of such price against the Obligations.




     11.3 License. Agent is hereby granted until Full Payment of the Obligations an
irrevocable, non-exclusive license or other right to use, license or sub-license (without payment
of royalty or other compensation to any Person) any or all Intellectual Property of Borrowers,
computer hardware and software, trade secrets, brochures, customer lists, promotional and
advertising materials, labels, packaging materials and other Property, in advertising for sale,
marketing, selling, collecting, completing manufacture of, or otherwise exercising any rights or
remedies with respect to, any Collateral. Each Borrower’s rights and interests under Intellectual
Property shall inure to Agent’s benefit.



     11.4 Setoff. At any time during an Event of Default, Agent, Issuing Bank, Lenders,
and any of their Affiliates are authorized, 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 Agent, Issuing Bank, such Lender or such
Affiliate to or for the credit or the account of
an Obligor against any Obligations, irrespective of whether or not Agent, Issuing Bank, such Lender
or such Affiliate shall have made any
demand under this Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured or are owed to a branch or office of Agent, Issuing Bank, such Lender or
such



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Affiliate different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of Agent, Issuing Bank, each Lender and each such Affiliate under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Person may have.



     11.5 Remedies Cumulative; No Waiver.



          11.5.1 Cumulative Rights. All covenants, conditions, provisions, warranties,
guaranties, indemnities and other undertakings of Borrowers contained in the Loan Documents are
cumulative and not in derogation or substitution of each other. In particular, the rights and
remedies of Agent and Lenders are cumulative, may be exercised at any time and from time to time,
concurrently or in any order, and shall not be exclusive of any other rights or remedies that Agent
and Lenders may have, whether under any agreement, by law, at equity or otherwise.




          11.5.2 Waivers. The failure or delay of Agent or any Lender to require strict
performance by Borrowers with any terms of the Loan Documents, or to exercise any rights or
remedies with respect to Collateral or otherwise, shall not operate as a waiver thereof nor as
establishment of a course of dealing. All rights and remedies shall continue in full force and
effect until Full Payment of all Obligations. No modification of any terms of any Loan Documents
(including any waiver thereof) shall be effective, unless such modification is specifically
provided in a writing directed to Borrowers and executed by Agent or the requisite Lenders, and
such modification shall be applicable only to the matter specified. No waiver of any Default or
Event of Default shall constitute a waiver of any other Default or Event of Default that may exist
at such time, unless expressly stated. If Agent or any Lender accepts performance by any Obligor
under any Loan Documents in a manner other than that specified therein, or during any Default or
Event of Default, or if Agent or any Lender shall delay or exercise any right or remedy under any
Loan Documents, such acceptance, delay or exercise shall not operate to waive any Default or Event
of Default nor to preclude exercise of any other right or remedy. It is expressly acknowledged by
Borrowers that any failure to satisfy a financial covenant on a measurement date shall not be cured
or remedied by satisfaction of such covenant on a subsequent date.




SECTION 12 AGENT




     12.1 Appointment, Authority and Duties of Agent.



          12.1.1 Appointment and Authority. Each Lender irrevocably appoints and designates
Bank of America as Agent hereunder. Agent may, and each Lender authorizes Agent to, enter into all
Loan Documents to which Agent is intended to be a party and accept all Security Documents, for
Agent’s benefit and the Pro Rata benefit of Lenders. Each Lender agrees that any action taken by
Agent or Required Lenders in accordance with the provisions of the Loan Documents, and the exercise
by Agent or Required Lenders of any rights or remedies set forth therein, together with all other
powers reasonably incidental thereto, shall be authorized by and binding upon all Lenders. Without
limiting the generality of the foregoing, Agent shall have the sole and exclusive authority to
(a) act as the disbursing and collecting agent for Lenders with respect to all payments and
collections arising in connection with the Loan Documents; (b) execute and deliver as Agent each
Loan Document, including any intercreditor or subordination agreement, and accept delivery of each
Loan Document from any Obligor or other Person; (c) act as collateral agent for Secured Parties for
purposes of perfecting and administering Liens under the Loan Documents, and for all other purposes
stated therein; (d) manage, supervise or otherwise deal with Collateral; and (e) take any
Enforcement Action or otherwise exercise any rights or remedies with respect to any Collateral
under the Loan Documents, Applicable Law or otherwise. The duties of Agent shall be ministerial
and administrative in nature, and Agent shall not have a fiduciary relationship with any Lender,
Secured Party, Participant or other Person, by reason of any Loan Document or any transaction
relating thereto. Agent alone shall be authorized to determine whether any Accounts or
Inventory constitute Eligible Accounts, Eligible In-Transit Petroleum Inventory, or Eligible
Inventory, or whether to



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impose or release any reserve, which determinations and judgments, if
reasonably exercised, shall exonerate Agent from liability to any Lender or other Person for any
error in judgment.




          12.1.2 Duties. Agent shall not have any duties except those expressly set forth in
the Loan Documents. The conferral upon Agent of any right shall not imply a duty on Agent’s part
to exercise such right, unless instructed to do so by Required Lenders in accordance with this
Agreement.




          12.1.3 Agent Professionals. Agent may perform its duties through agents and
employees. Agent may consult with and employ Agent Professionals, and shall be entitled to act
upon, and shall be fully protected in any action taken in reasonable reliance upon, any advice
given by an Agent Professional. Agent shall not be responsible for the negligence or misconduct of
any agents, employees or Agent Professionals selected by it with reasonable care.




          12.1.4 Instructions of Required Lenders. The rights and remedies conferred upon Agent
under the Loan Documents may be exercised without the necessity of joinder of any other party,
unless required by Applicable Law. Agent may request instructions from Required Lenders with
respect to any act (including the failure to act) in connection with any Loan Documents, and may
seek assurances to its satisfaction from Lenders of their indemnification obligations under Section
12.6 against all Claims that could be incurred by Agent in connection with any act. Agent shall be
entitled to refrain from any act until it has received such instructions or assurances, and Agent
shall not incur liability to any Person by reason of so refraining. Instructions of Required
Lenders shall be binding upon all Lenders, and no Lender shall have any right of action whatsoever
against Agent as a result of Agent acting or refraining from acting in accordance with the
instructions of Required Lenders. Notwithstanding the foregoing, instructions by and consent of
all Lenders shall be required in the circumstances described in Section 14.1.1, and in no event
shall Required Lenders, without the prior written consent of each Lender, direct Agent to
accelerate and demand payment of Loans held by one Lender without accelerating and demanding
payment of all other Loans, nor to terminate the Commitments of one Lender without terminating the
Commitments of all Lenders. In no event shall Agent be required to take any action that, in its
opinion, is contrary to Applicable Law or any Loan Documents or could subject any Agent Indemnitee
to personal liability.




     12.2 Agreements Regarding Collateral and Field Examination Reports.



          12.2.1 Lien Releases; Care of Collateral. Lenders authorize Agent to release any Lien
with respect to any Collateral (a) upon Full Payment of the Obligations; (b) that is the subject of
an Asset Disposition which Borrowers certify in writing to Agent is a Permitted Asset Disposition
or a Lien which Borrowers certify is a Permitted Lien entitled to priority over Agent’s Liens (and
Agent may rely conclusively on any such certificate without further inquiry); (c) that does not
constitute a material part of the Collateral; or (d) with the written consent of all Lenders.
Agent shall have no obligation whatsoever to any Lenders to assure that any Collateral exists or is
owned by a Borrower, or is cared for, protected, insured or encumbered, nor to assure that Agent’s
Liens have been properly created, perfected or enforced, or are entitled to any particular
priority, nor to exercise any duty of care with respect to any Collateral.




          12.2.2 Possession of Collateral. Agent and Lenders appoint each other Lender as agent
(for the benefit of Secured Parties) for the purpose of perfecting Liens in any Collateral held by
such Lender, to the extent such Liens are perfected by possession. If any Lender obtains
possession of any Collateral, it shall notify Agent thereof and, promptly upon Agent’s request,
deliver such Collateral to Agent or otherwise deal with it in accordance with Agent’s instructions.




          12.2.3 Reports. Agent shall promptly, upon receipt thereof, forward to each Lender
copies of the results of any field audit, examination or appraisal prepared by or on behalf of
Agent with



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respect to any Obligor or Collateral (“Report”). Each Lender agrees (a) that
neither Bank of America nor Agent makes any representation or warranty as to the accuracy or
completeness of any Report, and shall not be liable for any information contained in or omitted
from any Report; (b) that the Reports are not intended to be comprehensive audits or examinations,
and that Agent or any other Person performing any audit or examination will inspect only specific
information regarding Obligations or the Collateral and will rely significantly upon Borrowers’
books and records as well as upon representations of Borrowers’ officers and employees; and (c) to
keep all Reports confidential and strictly for such Lender’s internal use, and not to distribute
any Report (or the contents thereof) to any Person (except to such Lender’s Participants, attorneys
and accountants) or use any Report in any manner other than administration of the Loans and other
Obligations. Each Lender agrees to indemnify and hold harmless Agent and any other Person
preparing a Report from any action such Lender may take as a result of or any conclusion it may
draw from any Report, as well as any Claims arising in connection with any third parties that
obtain any part or contents of a Report through such Lender.




     12.3 Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected
in relying, upon any certification, notice or other communication (including those by telephone,
telex, telegram, telecopy or e-mail) reasonably believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person, and upon the advice and statements of Agent
Professionals.



     12.4 Action Upon Default. Agent shall not be deemed to have knowledge of any Default
or Event of Default unless it has received written notice from a Lender or Borrower specifying the
occurrence and nature thereof. If any Lender acquires knowledge of a Default or Event of Default,
it shall promptly notify Agent and the other Lenders thereof in writing. Each Lender agrees that,
except as otherwise provided in any Loan Documents or with the written consent of Agent and
Required Lenders, it will not take any Enforcement Action, accelerate Obligations under any Loan
Documents, or exercise any right that it might otherwise have under Applicable Law to credit bid at
foreclosure sales, UCC sales or other similar dispositions of Collateral. Notwithstanding the
foregoing, however, a Lender may take action to preserve or enforce its rights against an Obligor
where a deadline or limitation period is applicable that would, absent such action, bar enforcement
of Obligations held by such Lender, including the filing of proofs of claim in an Insolvency
Proceeding.



     12.5 Ratable Sharing. If any Lender shall obtain any payment or reduction of any
Obligation, whether through set-off or otherwise, in excess of its share of such Obligation,
determined on a Pro Rata basis or in accordance with Section 5.6.1, as applicable, such Lender
shall forthwith purchase from Agent, Issuing Bank and the other Lenders such participations in the
affected Obligation as are necessary to cause the purchasing Lender to share the excess payment or
reduction on a Pro Rata basis or in accordance with Section 5.6.1, as applicable. If any of such
payment or reduction is thereafter recovered from the purchasing Lender, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but without interest. No
Lender shall set off against any Dominion Account without the prior consent of Agent.



     12.6 Indemnification of Agent Indemnitees. EACH LENDER SHALL INDEMNIFY AND HOLD
HARMLESS AGENT INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY OBLIGORS (BUT WITHOUT LIMITING THE
INDEMNIFICATION OBLIGATIONS OF OBLIGORS UNDER ANY LOAN DOCUMENTS), ON A PRO RATA BASIS, AGAINST ALL
CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY AGENT INDEMNITEE, PROVIDED THE CLAIM RELATES
TO OR ARISES FROM AN AGENT INDEMNITEE ACTING AS OR FOR AGENT (IN ITS CAPACITY AS AGENT). In
Agent’s discretion, it may reserve for any such Claims made against an Agent Indemnitee, and may
satisfy any judgment, order or settlement relating thereto, from proceeds of Collateral prior to
making any distribution of Collateral proceeds to Lenders. If Agent
is sued by any receiver, bankruptcy trustee, debtor-in-possession or other Person for any
alleged preference or fraudulent transfer, then any monies paid by Agent in settlement or
satisfaction of such



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proceeding, together with all interest, costs and expenses (including
attorneys’ fees) incurred in the defense of same, shall be promptly reimbursed to Agent by each
Lender to the extent of its Pro Rata share.



     12.7 Limitation on Responsibilities of Agent. Agent shall not be liable to Lenders
for any action taken or omitted to be taken under the Loan Documents, except for losses directly
and solely caused by Agent’s gross negligence or willful misconduct. Agent does not assume any
responsibility for any failure or delay in performance or any breach by any Obligor or Lender of
any obligations under the Loan Documents. Agent does not make to Lenders any express or implied
warranty, representation or guarantee with respect to any Obligations, Collateral, Loan Documents
or Obligor. No Agent Indemnitee shall be responsible to Lenders for any recitals, statements,
information, representations or warranties contained in any Loan Documents; the execution,
validity, genuineness, effectiveness or enforceability of any Loan Documents; the genuineness,
enforceability, collectibility, value, sufficiency, location or existence of any Collateral, or the
validity, extent, perfection or priority of any Lien therein; the validity, enforceability or
collectibility of any Obligations; or the assets, liabilities, financial condition, results of
operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No Agent
Indemnitee shall have any obligation to any Lender to ascertain or inquire into the existence of
any Default or Event of Default, the observance or performance by any Obligor of any terms of the
Loan Documents, or the satisfaction of any conditions precedent contained in any Loan Documents.



     12.8 Successor Agent and Co-Agents.



          12.8.1 Resignation; Successor Agent. Subject to the appointment and acceptance of a
successor Agent as provided below, Agent may resign at any time by giving at least 30 days written
notice thereof to Lenders and Borrowers. Upon receipt of such notice, Required Lenders shall have
the right to appoint a successor Agent which shall be (a) a Lender or an Affiliate of a Lender; or
(b) a commercial bank that is organized under the laws of the United States or any state or
district thereof, has a combined capital surplus of at least $200,000,000 and (provided no Default
or Event of Default exists) is reasonably acceptable to Borrowers. If no successor agent is
appointed prior to the effective date of the resignation of Agent, then Agent may appoint a
successor agent from among Lenders. Upon acceptance by a successor Agent of an appointment to
serve as Agent hereunder, such successor Agent shall thereupon succeed to and become vested with
all the powers and duties of the retiring Agent without further act, and the retiring Agent shall
be discharged from its duties and obligations hereunder but shall continue to have the benefits of
the indemnification set forth in Sections 12.6 and 14.2. Notwithstanding any Agent’s resignation,
the provisions of this Section 12 shall continue in effect for its benefit with respect to any
actions taken or omitted to be taken by it while Agent. Any successor to Bank of America by merger
or acquisition of stock or this loan shall continue to be Agent hereunder without further act on
the part of the parties hereto, unless such successor resigns as provided above.




          12.8.2 Separate Agent. It is the intent of the parties that there shall be no
violation of any Applicable Law denying or restricting the right of financial institutions to
transact business in any jurisdiction. If Agent believes that it may be limited in the exercise of
any rights or remedies under the Loan Documents due to any Applicable Law, Agent may appoint an
additional Person who is not so limited, as a separate collateral agent or co-collateral agent. If
Agent so appoints a collateral agent or co-collateral agent, each right and remedy intended to be
available to Agent under the Loan Documents shall also be vested in such separate agent. Every
covenant and obligation necessary to the exercise thereof by such agent shall run to and be
enforceable by it as well as Agent. Lenders shall execute and deliver such documents as Agent
deems appropriate to vest any rights or remedies in such agent. If any collateral agent or
co-collateral agent shall die or dissolve, become incapable of acting, resign or be removed, then
all the rights and remedies of such agent, to the extent permitted by Applicable Law, shall
vest in and be exercised by Agent until appointment of a new agent.




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     12.9 Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it has,
independently and without reliance upon Agent or any other Lenders, and based upon such documents,
information and analyses as it has deemed appropriate, made its own credit analysis of each Obligor
and its own decision to enter into this Agreement and to fund Loans and participate in LC
Obligations hereunder. Each Lender has made such inquiries concerning the Loan Documents, the
Collateral and each Obligor as such Lender feels necessary. Each Lender further acknowledges and
agrees that the other Lenders and Agent have made no representations or warranties concerning any
Obligor, any Collateral or the legality, validity, sufficiency or enforceability of any Loan
Documents or Obligations. Each Lender will, independently and without reliance upon the other
Lenders or Agent, and based upon such financial statements, documents and information as it deems
appropriate at the time, continue to make and rely upon its own credit decisions in making Loans
and participating in LC Obligations, and in taking or refraining from any action under any Loan
Documents. Except for notices, reports and other information expressly requested by a Lender,
Agent shall have no duty or responsibility to provide any Lender with any notices, reports or
certificates furnished to Agent by any Obligor or any credit or other information concerning the
affairs, financial condition, business or Properties of any Obligor (or any of its
Affiliates) which may come into possession of Agent or any of Agent’s Affiliates.



     12.10 Replacement of Certain Lenders. If a Lender (a) fails to fund its Pro Rata
share of any Loan or LC Obligation hereunder, and such failure is not cured within two Business
Days, (b) defaults in performing any of its obligations under the Loan Documents, (c) fails to give
its consent to any amendment, waiver or action for which consent of all Lenders was required and
Required Lenders consented, or (d) requests compensation pursuant to Section 3.7 or becomes
entitled to and requests payment for Additional Taxes or other Taxes pursuant to Section 5.9 then,
in addition to any other rights and remedies that any Person may have, Agent, so long as no Event
of Default has occurred and is continuing, the Borrower Agent, may, by notice to such Lender within
120 days after such event, require such Lender to assign all of its rights and obligations under
the Loan Documents to Eligible Assignee(s) specified by Agent, pursuant to appropriate Assignment
and Acceptance(s) and within 20 days after Agent’s notice. Agent is irrevocably appointed as
attorney-in-fact to execute any such Assignment and Acceptance if the Lender fails to execute same.
Such Lender shall be entitled to receive, in cash, concurrently with such assignment, all amounts
owed to it under the Loan Documents, including all principal, interest and fees through the date of
assignment (but excluding any prepayment charge).



     12.11 Remittance of Payments and Collections.



          12.11.1 Remittances Generally. All payments by any Lender to Agent shall be made by
the time and on the day set forth in this Agreement, in immediately available funds. If no time
for payment is specified or if payment is due on demand by Agent and request for payment is made by
Agent by 11:00 a.m. on a Business Day, payment shall be made by Lender not later than 2:00 p.m. on
such day, and if request is made after 11:00 a.m., then payment shall be made by 11:00 a.m. on the
next Business Day. Payment by Agent to any Lender shall be made by wire transfer, in the type of
funds received by Agent. Any such payment shall be subject to Agent’s right of offset for any
amounts due from such Lender under the Loan Documents.




          12.11.2 Failure to Pay. If any Lender fails to pay any amount when due by it to Agent
pursuant to the terms hereof, such amount shall bear interest from the due date until paid at the
rate determined by Agent as customary in the banking industry for interbank compensation. In no
event shall Borrowers be entitled to receive credit for any interest paid by a Lender to Agent.




          12.11.3 Recovery of Payments. If Agent pays any amount to a Lender in the expectation
that a related payment will be received by Agent from an Obligor and such related payment is not
received, then Agent may recover such amount from each Lender that received it. If Agent
determines at any time that an amount received under any Loan Document must be returned to an Obligor




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or paid to any other Person pursuant to Applicable Law or otherwise, then, notwithstanding
any other term of any Loan Document, Agent shall not be required to distribute such amount to any
Lender. If any amounts received and applied by Agent to any Obligations are later required to be
returned by Agent pursuant to Applicable Law, each Lender shall pay to Agent, on demand, such
Lender’s Pro Rata share of the amounts required to be returned.




     12.12 Agent in its Individual Capacity. As a Lender, Bank of America shall have the
same rights and remedies under the other Loan Documents as any other Lender, and the terms
“Lenders,” “Required Lenders” or any similar term shall include Bank of America in its capacity as
a Lender. Each of Bank of America and its Affiliates may accept deposits from, maintain deposits
or credit balances for, invest in, lend money to, provide Bank Products to, act as trustee under
indentures of, serve as financial or other advisor to, and generally engage in any kind of business
with, Obligors and their Affiliates, as if Bank of America were any other bank, without any duty to
account therefor (including any fees or other consideration received in connection therewith) to
the other Lenders. In their individual capacity, Bank of America and its Affiliates may receive
information regarding Obligors, their Affiliates and their Account Debtors (including information
subject to confidentiality obligations), and each Lender agrees that Bank of America and its
Affiliates shall be under no obligation to provide such information to Lenders, if acquired in such
individual capacity and not as Agent hereunder.



     12.13 Agent Titles. Each Lender, other than Bank of America, that is designated (on
the cover page of this Agreement or otherwise) by Bank of America as an “Agent” or “Arranger” of
any type shall not have any right, power, responsibility or duty under any Loan Documents other
than those applicable to all Lenders, and shall in no event be deemed to have any fiduciary
relationship with any other Lender.



     12.14 No Third Party Beneficiaries. This Section 12 is an agreement solely among
Lenders and Agent, and shall survive Full Payment of the Obligations. This Section 12 does not
confer any rights or benefits upon Borrowers or any other Person. As between Borrowers and Agent,
any action that Agent may take under any Loan Documents or with respect to any Obligations shall be
conclusively presumed to have been authorized and directed by Lenders.



SECTION 13 BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS




     13.1 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of Borrowers, Agent, Lenders, and their respective successors and assigns, except that
(a) no Borrower shall have the right to assign its rights or delegate its obligations under any
Loan Documents; and (b) any assignment by a Lender must be made in compliance with Section 13.3.
Agent may treat the Person which made any Loan as the owner thereof for all purposes until such
Person makes an assignment in accordance with Section 13.3. Any authorization or consent of a
Lender shall be conclusive and binding on any subsequent transferee or assignee of such Lender.



     13.2 Participations.



          13.2.1 Permitted Participants; Effect. Any Lender may, in the ordinary course of its
business and in accordance with Applicable Law, at any time sell to a financial institution
(“Participant”) a participating interest in the rights and obligations of such Lender under any
Loan Documents. Despite any sale by a Lender of participating interests to a Participant, such
Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain
solely responsible to the other parties hereto for performance of such obligations, such Lender
shall remain the
holder of its Loans and Commitments for all purposes, all amounts payable by Borrowers shall
be determined as if such Lender had not sold such participating interests, and Borrowers and Agent
shall continue to deal solely and directly with such Lender in connection with the Loan Documents.
Each Lender shall be solely responsible for notifying its Participants of any matters under the
Loan Documents,




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and Agent and the other Lenders shall not have any obligation or liability to any
such Participant. A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 5.9 unless Borrowers agree otherwise in writing.




          13.2.2 Voting Rights. Each Lender shall retain the sole right to approve, without the
consent of any Participant, any amendment, waiver or other modification of any Loan Documents other
than that which forgives principal, interest or fees, reduces the stated interest rate or fees
payable with respect to any Loan or Commitment in which such Participant has an interest, postpones
the Commitment Termination Date or any date fixed for any regularly scheduled payment of principal,
interest or fees on such Loan or Commitment, or releases any Borrower, Guarantor or substantial
portion of the Collateral.




          13.2.3 Benefit of Set-Off. Borrowers agree that each Participant shall have a right
of set-off in respect of its participating interest to the same extent as if such interest were
owing directly to a Lender, and each Lender shall also retain the right of set-off with respect to
any participating interests sold by it. By exercising any right of set-off, a Participant agrees
to share with Lenders all amounts received through its set-off, in accordance with Section 12.5 as
if such Participant were a Lender.




     13.3 Assignments.



          13.3.1 Permitted Assignments. A Lender may assign to an Eligible Assignee any of its
rights and obligations under the Loan Documents, as long as (a) each assignment is of a constant,
and not a varying, percentage of the transferor Lender’s rights and obligations under the Loan
Documents and, in the case of a partial assignment, is in a minimum principal amount of $10,000,000
(unless otherwise agreed by Agent in its discretion) and integral multiples of $1,000,000 in excess
of that amount; (b) except in the case of an assignment in whole of a Lender’s rights and
obligations, the aggregate amount of the Commitments retained by the transferor Lender is at least
$15,000,000 (unless otherwise agreed by Agent in its discretion); and (c) the parties to each such
assignment shall execute and deliver to Agent, for its acceptance and recording, an Assignment and
Acceptance. Nothing herein shall limit the right of a Lender to pledge or assign any rights under
the Loan Documents to (i) any Federal Reserve Bank or the United States Treasury as collateral
security pursuant to Regulation A of the Board of Governors and any Operating Circular issued by
such Federal Reserve Bank, or (ii) counterparties to swap agreements relating to any Loans;
provided, that any payment by Borrowers to the assigning Lender in respect of any Obligations
assigned as described in this sentence shall satisfy Borrowers’ obligations hereunder to the extent
of such payment, and no such assignment shall release the assigning Lender from its obligations
hereunder.




          13.3.2 Effect; Closing Date. Upon delivery to Agent of an assignment notice in the
form of Exhibit D and a processing fee of $3,500 (unless otherwise agreed by Agent in its
discretion), the assignment shall become effective as specified in the notice, if it complies with
this Section 13.3. From such effective date, the Eligible Assignee shall for all purposes be a
Lender under the Loan Documents, and shall have all rights and obligations of a Lender thereunder.
Upon consummation of an assignment, the transferor Lender, Agent and Borrowers shall make
appropriate arrangements for issuance of replacement and/or new Notes, as applicable. The
transferee Lender shall comply with Section 5.10 and deliver, upon request, an administrative
questionnaire satisfactory to Agent.




SECTION 14 MISCELLANEOUS




     14.1 Consents, Amendments and Waivers.



          14.1.1 Amendment. No modification of any Loan Document, including any extension or
amendment of a Loan Document or any waiver of a Default or Event of Default,  shall be



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effective without the prior written agreement of Agent (with the consent of Required Lenders) and each
Obligor party to such Loan Document; provided, that




          (a) without the prior written consent of Agent, no modification shall be effective with
respect to any provision in a Loan Document that relates to any rights, duties or discretion of
Agent;




          (b) without the prior written consent of Issuing Bank, no modification shall be effective with
respect to any LC Obligations or Section 2.3;




          (c) without the prior written consent of each affected Lender, no modification shall be
effective that would (i) increase the Commitment of such Lender; or (ii) reduce the amount of, or
waive or delay payment of, any principal, interest or fees payable to such Lender; and




          (d) without the prior written consent of all Lenders (except a defaulting Lender as provided
in Section 4.2), no modification shall be effective that would (i) extend the Revolver Termination
Date; (ii) alter Section 5.6, 7.1 (except to add Collateral) or 14.1.1; (iii) amend the definitions
of Borrowing Base (and the defined terms used in such definition), Pro Rata or Required Lenders;
(iv) increase any advance rate or increase total Commitments; (vi) release ABL Priority Collateral
with a book value greater than $5,000,000 during any calendar year or release any material portion
of any other Collateral, except as currently contemplated by the Intercreditor Agreement or the
other Loan Documents; or (vii) release any Obligor from liability for any Obligations, if such
Obligor is Solvent at the time of the release.




          14.1.2 Limitations. The agreement of Borrowers shall not be necessary to the
effectiveness of any modification of a Loan Document that deals solely with the rights and duties
of Lenders, Agent and/or Issuing Bank as among themselves. Only the consent of the parties to the
Fee Letter or any agreement relating to a Bank Product shall be required for any modification of
such agreements, and no Affiliate of a Lender that is party to a Bank Product agreement shall have
any other right to consent to or participate in any manner in modification of any other Loan
Document. The making of any Loans during the existence of a Default or Event of Default shall not
be deemed to constitute a waiver of such Default or Event of Default, nor to establish a course of
dealing. Any waiver or consent granted by Lenders hereunder shall be effective only if in writing,
and then only in the specific instance and for the specific purpose for which it is given.




          14.1.3 Payment for Consents. No Borrower will, directly or indirectly, pay any
remuneration or other thing of value, whether by way of additional interest, fee or otherwise, to
any Lender (in its capacity as a Lender hereunder) as consideration for agreement by such Lender
with any modification of any Loan Documents, unless such remuneration or value is concurrently
paid, on the same terms, on a Pro Rata basis to all Lenders providing their consent.




     14.2 Indemnity.



          (a) EACH BORROWER SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES AGAINST ANY CLAIMS THAT
MAY BE INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE, INCLUDING CLAIMS ARISING FROM THE NEGLIGENCE
OF AN INDEMNITEE. In no event shall any party to a Loan Document have any obligation thereunder to
indemnify or hold harmless an Indemnitee with respect to a Claim that is determined in a final,
non-
appealable judgment by a court of competent jurisdiction to result from the gross negligence
or willful misconduct of such Indemnitee.




          (b) Without limiting the rights of the Agent and the Lenders under any separate environmental
indemnity agreement delivered by the Obligors, the Obligors agree to indemnify, defend



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and hold
harmless the Agent and the Lenders from any loss or liability directly or indirectly arising out of
the use, generation, manufacture, production, storage, release, threatened release, discharge,
disposal, or presence of Hazardous Materials relating to the Obligors’ operations, business, or
property. This indemnity will apply whether the Hazardous Material is on, under, or about the
Obligors’ property or operations or property leased to any Obligor. The indemnity includes but is
not limited to reasonable attorney’s fees and costs. The indemnity extends to the Agent and the
Lenders, their parents, affiliates, subsidiaries, and all of their directors, officers, employees,
agents, successors, attorneys and assigns. This indemnity will survive repayment of all other
Obligations.




     14.3 Notices and Communications.



          14.3.1 Notice Address. Subject to Section 4.1.4, all notices and other communications
by or to a party hereto shall be in writing and shall be given to any Borrower, at Borrower Agent’s
address shown on the signature pages hereof, and to any other Person at its address shown on the
signature pages hereof (or, in the case of a Person who becomes a Lender after the Closing Date, at
the address shown on its Assignment and Acceptance), or at such other address as a party may
hereafter specify by notice in accordance with this Section 14.3. Each such notice or other
communication shall be effective only (a) if given by facsimile transmission, when transmitted to
the applicable facsimile number, if confirmation of receipt is received; (b) if given by mail,
three Business Days after deposit in the U.S. mail, with first-class postage pre-paid, addressed to
the applicable address; or (c) if given by personal delivery, when duly delivered to the notice
address with receipt acknowledged. Notwithstanding the foregoing, no notice to Agent pursuant to
any of Sections 2.1.4, 2.3, 3.1.2, 4.1.1 or 5.3.3 shall be effective until actually received by the
individual to whose attention at Agent such notice is required to be sent. Any written notice or
other communication that is not sent in conformity with the foregoing provisions shall nevertheless
be effective on the date actually received by the noticed party. Any notice received by Borrower
Agent shall be deemed received by all Borrowers.




          14.3.2 Electronic Communications; Voice Mail. Electronic mail and internet websites
may be used only for routine communications, such as financial statements, Borrowing Base
Certificates and other information required by Section 10.1.2, administrative matters, distribution
of Loan Documents for execution, and matters permitted under Section 4.1.4. Agent and Lenders make
no assurances as to the privacy and security of electronic communications. Electronic and voice
mail may not be used as effective notice under the Loan Documents.




          14.3.3 Non-Conforming Communications. Agent and Lenders may rely upon any notices
purportedly given by or on behalf of any Borrower even if such notices were not made in a manner
specified herein, were incomplete or were not confirmed, or if the terms thereof, as understood by
the recipient, varied from a later confirmation. Each Borrower shall indemnify and hold harmless
each Indemnitee from any liabilities, losses, costs and expenses arising from any telephonic
communication purportedly given by or on behalf of a Borrower.




     14.4 Performance of Borrowers’ Obligations. Agent may, in its discretion at any time
and from time to time, at Borrowers’ expense, pay any amount or do any act required of a Borrower
under any Loan Documents or otherwise lawfully requested by Agent to (a) enforce any Loan Documents
or collect any Obligations; (b) protect, insure, maintain or realize upon any Collateral; or
(c) defend or maintain the validity or priority of Agent’s Liens in any Collateral, including any
payment of a judgment, insurance premium, warehouse charge, finishing or processing charge, or
landlord claim, or any discharge of a Lien.
All payments, costs and expenses (including Extraordinary Expenses) of Agent under this
Section shall be reimbursed to Agent by Borrowers, on demand, with interest from the date incurred
to the date of payment thereof at the Default Rate applicable to Base Rate Loans. Any payment made
or action taken by Agent under this Section shall be without prejudice to any right to assert an
Event of Default or to exercise any other rights or remedies under the Loan Documents.



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     14.5 Credit Inquiries. Each Borrower hereby authorizes Agent and Lenders (but they
shall have no obligation) to respond to usual and customary credit inquiries from third parties
concerning any Borrower or Subsidiary.



     14.6 Severability. Wherever possible, each provision of the Loan Documents shall be
interpreted in such manner as to be valid under Applicable Law. If any provision is found to be
invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the
remaining provisions of the Loan Documents shall remain in full force and effect.



     14.7 Cumulative Effect; Conflict of Terms. The provisions of the Loan Documents are
cumulative. The parties acknowledge that the Loan Documents may use several limitations, tests or
measurements to regulate similar matters, and they agree that these are cumulative and that each
must be performed as provided. Except as otherwise provided in another Loan Document (by specific
reference to the applicable provision of this Agreement), if any provision contained herein is in
direct conflict with any provision in another Loan Document, the provision herein shall govern and
control.



     14.8 Counterparts. Any Loan Document may be executed in counterparts, each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement shall become effective when Agent has received counterparts bearing the
signatures of all parties hereto. Delivery of a signature page of any Loan Document by telecopy or
email transmission shall be effective as delivery of a manually executed counterpart of such
agreement.



     14.9 Entire Agreement. Time is of the essence of the Loan Documents. The Loan
Documents constitute the entire contract among the parties relating to the subject matter hereof,
and supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof.



     14.10 Relationship with Lenders. The obligations of each Lender hereunder are
several, and no Lender shall be responsible for the obligations or Commitments of any other Lender.
Amounts payable hereunder to each Lender shall be a separate and independent debt, and each Lender
shall be entitled, to the extent not otherwise restricted hereunder, to protect and enforce its
rights arising out of the Loan Documents. It shall not be necessary for Agent or any other Lender
to be joined as an additional party in any proceeding for such purposes. Nothing in this Agreement
and no action of Agent or Lenders pursuant to the Loan Documents shall be deemed to constitute
Agent and Lenders to be a partnership, association, joint venture or any other kind of entity, nor
to constitute control of any Borrower.



     14.11 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated by any Loan Document, Borrowers acknowledge and agree that (a)(i) this
credit facility and any related arranging or other services by Agent, any Lender, any of their
Affiliates or any arranger are arm’s-length commercial transactions between Borrowers and such
Person; (ii) Borrowers have consulted their own legal, accounting, regulatory and tax advisors to
the extent they have deemed appropriate; and (iii) Borrowers are capable of evaluating and
understanding, and do understand and accept, the terms, risks and conditions of the transactions
contemplated by the Loan Documents; (b) each of Agent, Lenders, their Affiliates and any arranger
is and has been acting solely as a principal in connection with this credit facility, is not the
financial advisor, agent or fiduciary for Borrowers, any of their Affiliates or any other Person,
and has no obligation with respect to the transactions contemplated by
the Loan Documents except as expressly set forth therein; and (c) Agent, Lenders, their
Affiliates and any arranger may be engaged in a broad range of transactions that involve interests
that differ from Borrowers and their Affiliates, and have no obligation to disclose any of such
interests to Borrowers or their Affiliates. To the fullest extent permitted by Applicable Law,
each Borrower hereby waives and releases any claims that it may have against Agent, Lenders, their
Affiliates and any arranger with respect to any



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breach or alleged breach of agency or fiduciary
duty in connection with any aspect of any transaction contemplated by a Loan Document.



     14.12 Confidentiality. Each of Agent, Lenders and Issuing Bank agrees to maintain the
confidentiality of all 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 (provided such Persons are informed of the
confidential nature of the Information and instructed to keep the Information confidential); (b) to
the extent requested by any governmental or regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority); (c) to the extent required by Applicable Law or
by any subpoena or similar legal process; (d) to any other party hereto; (e) in connection with the
exercise of any remedies, the enforcement of any rights, or any action or proceeding relating to
any Loan Documents; (f) subject to an agreement containing provisions substantially the same as
this Section, to any Transferee or any actual or prospective party (or its advisors) to any Bank
Product; (g) with the consent of Borrower Agent; or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii) is available to
Agent, any Lender, Issuing Bank or any of their Affiliates on a nonconfidential basis from a source
other than Borrowers. Notwithstanding the foregoing, Agent and Lenders may publish or disseminate
general information describing this credit facility, including the names and addresses of Borrowers
and a general description of Borrowers’ businesses, and may use Borrowers’ logos, trademarks or
product photographs in advertising materials. As used herein, “Information” means all
information received from an Obligor or Subsidiary relating to it or its business that is
identified as confidential when delivered. Any Person required to maintain the confidentiality of
Information pursuant to this Section shall be deemed to have complied if it exercises the same
degree of care that it accords its own confidential information. Each of Agent, Lenders and
Issuing Bank acknowledges that (i) Information may include material non-public information
concerning an Obligor or Subsidiary; (ii) it has developed compliance procedures regarding the use
of material non-public information; and (iii) it will handle such material non-public information
in accordance with Applicable Law, including federal and state securities laws.



     14.13 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, UNLESS OTHERWISE
SPECIFIED, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
CONFLICT OF LAW PRINCIPLES OTHER THAN SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK (BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL BANKS).



     14.14 Consent to Forum; Arbitration.



          14.14.1 Forum. EACH BORROWER HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
FEDERAL OR STATE COURT SITTING IN OR WITH JURISDICTION OVER NEW YORK, IN ANY PROCEEDING OR DISPUTE
RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY SUCH PROCEEDING SHALL BE BROUGHT BY
IT SOLELY IN ANY SUCH COURT. EACH BORROWER IRREVOCABLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES
THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR
INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 14.3.1. Nothing herein
shall limit the right of Agent or any Lender to bring proceedings against any Obligor in any
other court, nor limit the right of any party to serve process in any other manner permitted by
Applicable Law. Nothing in this Agreement shall be deemed to preclude enforcement by Agent of any
judgment or order obtained in any forum or jurisdiction.




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          14.14.2 Arbitration. Notwithstanding any other provision of this Agreement to the
contrary, any controversy or claim among the parties relating in any way to any Obligations or Loan
Documents, including any alleged tort, shall at the request of any party hereto be determined by
binding arbitration conducted in accordance with the United States Arbitration Act (Title 9 U.S.
Code). Arbitration proceedings will be determined in accordance with the Act, the then-current
rules and procedures for the arbitration of financial services disputes of the American Arbitration
Association (“AAA”), and the terms of this Section. In the event of any inconsistency, the terms
of this Section shall control. If AAA is unwilling or unable to serve as the provider of
arbitration or to enforce any provision of this Section, Agent may designate another arbitration
organization with similar procedures to serve as the provider of arbitration. The arbitration
proceedings shall be conducted in Los Angeles or Pasadena, California. The arbitration hearing
shall commence within 90 days of the arbitration demand and close within 90 days thereafter. The
arbitration award must be issued within 30 days after close of the hearing (subject to extension by
the arbitrator for up to 60 days upon a showing of good cause), and shall include a concise written
statement of reasons for the award. The arbitrator shall give effect to applicable statutes of
limitation in determining any controversy or claim, and for these purposes, service on AAA under
applicable AAA rules of a notice of claim is the equivalent of the filing of a lawsuit. Any
dispute concerning this Section or whether a controversy or claim is arbitrable shall be determined
by the arbitrator. The arbitrator shall have the power to award legal fees to the extent provided
by this Agreement. Judgment upon an arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief or pursuant to a
provisional or ancillary remedy shall not constitute a waiver of the right of any party, including
the plaintiff, to submit the controversy or claim to arbitration if any other party contests such
action for judicial relief. No controversy or claim shall be submitted to arbitration without the
consent of all parties if, at the time of the proposed submission, such controversy or claim
relates to an obligation secured by Real Estate, but if all parties do not consent to submission of
such a controversy or claim to arbitration, it shall be determined as provided in the next
sentence. At the request of any party, a controversy or claim that is not submitted to arbitration
as provided above shall be determined by judicial reference; and if such an election is made, the
parties shall designate to the court a referee or referees selected under the auspices of the AAA
in the same manner as arbitrators are selected in AAA sponsored proceedings and the presiding
referee of the panel (or the referee if there is a single referee) shall be an active attorney or
retired judge; and judgment upon the award rendered by such referee or referees shall be entered in
the court in which proceeding was commenced. None of the foregoing provisions of this Section
shall limit the right of Agent or Lenders to exercise self-help remedies, such as setoff,
foreclosure or sale of any Collateral or to obtain provisional or ancillary remedies from a court
of competent jurisdiction before, after or during any arbitration proceeding. The exercise of a
remedy does not waive the right of any party to resort to arbitration or reference. At Agent’s
option, foreclosure under a Mortgage may be accomplished either by exercise of power of sale
thereunder or by judicial foreclosure.




     14.15 Waivers by Borrowers. To the fullest extent permitted by Applicable Law, each
Borrower waives (a) the right to trial by jury (which Agent and each Lender hereby also waives) in
any proceeding or dispute of any kind relating in any way to any Loan Documents, Obligations or
Collateral; (b) presentment, demand, protest, notice of presentment, default, non-payment,
maturity, release, compromise, settlement, extension or renewal of any commercial paper, accounts,
documents, instruments, chattel paper and guaranties at any time held by Agent on which a Borrower
may in any way be liable, and hereby ratifies anything Agent may do in this regard; (c) notice
prior to taking possession or control of any Collateral; (d) any bond or security that might be
required by a court prior to allowing Agent to exercise any rights or remedies; (e) the benefit of
all valuation, appraisement and exemption
laws; (f) any claim against Agent or any Lender, on any theory of liability, for special,
indirect, consequential, exemplary or punitive damages (as opposed to direct or actual damages) in
any way relating to any Enforcement Action, Obligations, Loan Documents or transactions relating
thereto; and (g) notice of acceptance hereof. Each Borrower acknowledges that the foregoing
waivers are a material inducement to Agent and Lenders entering into this Agreement and that Agent
and Lenders are relying



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upon the foregoing in their dealings with Borrowers. Each Borrower has
reviewed the foregoing waivers with its legal counsel and has knowingly and voluntarily waived its
jury trial and other rights following consultation with legal counsel. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the court.



     14.16 Patriot Act Notice. Agent and Lenders hereby notify Borrowers that pursuant to
the requirements of the Patriot Act, Agent and Lenders are required to obtain, verify and record
information that identifies each Borrower, including its legal name, address, tax ID number and
other information that will allow Agent and Lenders to identify it in accordance with the Patriot
Act. Agent and Lenders will also require information regarding each personal guarantor, if any,
and may require information regarding Borrowers’ management and owners, such as legal name,
address, social security number and date of birth.



     14.17 Intercreditor Agreement.



          14.17.1 Notwithstanding anything herein to the contrary, the lien and security interest
granted pursuant to this Agreement and the exercise of any right or remedy hereunder are subject to
the provisions of the Intercreditor Agreement.  In the event of any conflict between the terms of
the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall
govern and control.




          14.17.2 The Lenders acknowledge that obligations of Holdings and the Subsidiaries under the
Permitted Term Loan Facility, and certain obligations related thereto, will be secured by Liens on
assets of Holdings and the Subsidiaries that constitute Collateral. At the request of Holdings and
the Company, the Agent shall enter into the Intercreditor Agreement establishing the relative
rights of the Secured Parties and of the secured parties under the Permitted Term Loan Facility
with respect to the Collateral. Each Lender hereby irrevocably (a) consents to the subordination
of Liens provided for under the Intercreditor Agreement, (b) authorizes and directs the Agent to
execute and deliver the Intercreditor Agreement and any acknowledgements, agreements or documents
relating thereto, in each case, on behalf of such Lender and without any further consent,
authorization or other action by such Lender, (c) agrees that, upon the execution and delivery
thereof, such Lender will be bound by the provisions of the Intercreditor Agreement as if it were a
signatory thereto and will take no actions contrary to the provisions of the Intercreditor
Agreement and (d) agrees that no Lender shall have any right of action whatsoever against the Agent
as a result of any action taken by the Agent pursuant to this Section or in accordance with the
terms of the Intercreditor Agreement. Each Lender hereby further irrevocably authorizes and
directs the Agent to enter into such amendments, supplements or other modifications to the
Intercreditor Agreement as are contemplated by Section 5.05 thereof in connection with any
extension, renewal, refinancing or replacement of the Term Loan Agreement or any refinancing, in
part but not in whole, of the Term Loan Obligations, in each case, on behalf of such Lender and
without any further consent, authorization or other action by such Lender. The Agent shall have
the benefit of the provisions of Section 12 with respect to all actions taken by it pursuant to
this Section or in accordance with the terms of the Intercreditor Agreement to the full extent
thereof.




SECTION 15 HOLDINGS GUARANTY




     15.1 Guaranty; Limitation of Liability.



          15.1.1 Holdings hereby absolutely, unconditionally and irrevocably guarantees (the undertaking
by Holdings under this Section 15 being, as amended from time to time, the “Holdings
Guaranty”) the punctual payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all Obligations of each other
Obligor now or hereafter existing under or in respect of the Loan Documents (including, without
limitation, any




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extensions, modifications, substitutions, amendments or renewals of any or all of
the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for
principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or
otherwise (such Obligations being the “Guaranteed Obligations”), and agrees to pay any and
all expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by
Agent or any other Secured Party in enforcing any rights under this Holdings Guaranty or any other
Loan Document. Without limiting the generality of the foregoing, Holdings’ liability shall extend
to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other
Obligor to any Secured Party under or in respect of the Loan Documents but for the fact that they
are unenforceable or not allowable due to the existence of any Insolvency Proceeding involving such
other Obligor.




          15.1.2 Holdings, and by its acceptance of this Holdings Guaranty, Agent and each other Secured
Party, hereby confirms that it is the intention of all such Persons that this Holdings Guaranty and
the Obligations of Holdings hereunder not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar foreign, federal or state law to the extent applicable to this Holdings
Guaranty and the Obligations of Holdings hereunder. To effectuate the foregoing intention,
Holdings, Agent and each of the other Secured Parties hereby irrevocably agree that such Guaranteed
Obligations and other liabilities shall be limited to the maximum amount as will, after giving
effect to such maximum amount and all other contingent and fixed liabilities of Holdings that are
relevant under the laws referred to in the first sentence hereof, and after giving effect to any
collections from, any rights to receive contributions from, or payments made by or on behalf of,
any of the other Obligors in respect of the Obligations under any Loan Document, result in the
Guaranteed Obligations and all other liabilities of Holdings under this Holdings Guaranty not
constituting a fraudulent transfer or conveyance.




          15.1.3 Holdings hereby unconditionally and irrevocably agrees that in the event any payment
shall be required to be made to any Secured Party under this Holdings Guaranty any other Loan
Document or any other guaranty, Holdings will contribute, to the maximum extent permitted by law,
such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate
amount paid to the Secured Parties under or in respect of the Loan Documents.




     15.2 Guaranty Absolute. Holdings guarantees that the Guaranteed Obligations will be
paid strictly in accordance with the terms of the Loan Documents, regardless of any Applicable Law,
now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party with respect thereto. The Obligations of Holdings under or in respect of this
Holdings Guaranty are independent of the Guaranteed Obligations or any other Obligations of any
other Obligor under or in respect of the Loan Documents, and a separate action or actions may be
brought and prosecuted against Holdings to enforce this Holdings Guaranty, irrespective of whether
any action is brought against any Borrower or any other Obligor or whether any Borrower or any
other Obligor is joined in any such action or actions. The liability of Holdings under this
Holdings Guaranty shall be irrevocable, absolute and unconditional irrespective of, and Holdings
hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to,
any or all of the following:



          (a) any lack of validity or enforceability of any Loan Document or any agreement or instrument
relating thereto;




          (b) any change in the time, manner or place of payment of, or in any other term of, including
any increase in the amount of, all or any of the Guaranteed Obligations or any other Obligations of
any other Obligor under or in respect of the Loan Documents, or any other amendment or waiver of or
any consent to departure from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to any Obligor or
otherwise;




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          (c) any taking, exchange, release or non-perfection of any Collateral or any other collateral,
or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty,
for all or any of the Guaranteed Obligations;




          (d) any manner of application of Collateral or any other collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any
Collateral or any other collateral for all or any of the Guaranteed Obligations or any other
Obligations of any Obligor under the Loan Documents or any other assets of any Obligor; the failure
of the Agent, any other Secured Party or any other person to exercise diligence or reasonable care
in the preservation, protection, enforcement, sale or other handling or treatment of all or any
part of such Collateral, property or security;




          (e) the fact that any Collateral, security, security interest or lien contemplated or intended
to be given, created or granted as security for the repayment of the Guaranteed Obligations shall
not be properly perfected or created, or shall prove to be unenforceable or subordinate to any
other security interest or lien, it being recognized and agreed by Holdings that it is not entering
into this Holdings Guaranty in reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any such Collateral;




          (f) any change, restructuring or termination of the corporate structure or existence of any
Obligor or any of its Subsidiaries;




          (g) any failure of any Secured Party to disclose to any Obligor any information relating to
the business, condition (financial or otherwise), operations, performance, properties or prospects
of any other Obligor now or hereafter known to such Secured Party (Holdings waiving any duty on the
part of the Secured Parties to disclose such information);




          (h) the failure of any other Person to execute or deliver any Loan Document or any supplement
thereto or any other guaranty or agreement or the release or reduction of liability of any
Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or




          (i) any other circumstance (including, without limitation, any statute of limitations) or any
existence of or reliance on any representation by any Secured Party that might otherwise constitute
a defense available to, or a discharge of, any Obligor or any other guarantor or surety, other than
payment in full of the Guaranteed Obligations (other than contingent indemnification obligations).



This Holdings Guaranty shall continue to be effective or be reinstated, as the case may be, if at
any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be
returned by Agent or any Secured Party or any other Person upon the insolvency, bankruptcy or
reorganization of any Borrower or any other Obligor or otherwise, all as though such payment had
not been made and Holdings hereby unconditionally and irrevocably agrees that it will indemnify
Agent and each of the other Secured Parties, upon demand, for all of the costs and expenses
(including, without limitation, reasonable fees and expenses of counsel) incurred by Agent or such
other Secured Party in connection with any such rescission or restoration, including any such costs
and expenses incurred in defending against any claim alleging that such payment constituted a
preference, a fraudulent transfer or a similar payment under any bankruptcy, insolvency or similar
Law.



Holdings hereby further agrees that, as between Holdings on the one hand, and Agent and the Secured
Parties, on the other hand, (i) the Guaranteed Obligations of Holdings may be declared to be
forthwith due and payable as provided in Section 11.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in Section 11.2) for purposes of
Section 15.1, notwithstanding any stay, injunction or other prohibition preventing such declaration
in respect of the Obligations of any of the Obligors guaranteed hereunder (or preventing such
Guaranteed Obligations from becoming automatically


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due and payable) as against any other Person and
(ii) in the event of any declaration of acceleration of such Guaranteed Obligations (or such
Guaranteed Obligations being deemed to have become automatically due and payable) as provided in
Section 11.2, such Guaranteed Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by Holdings for all purposes of this Holdings Guaranty.




     15.3 Waivers and Acknowledgments.



          15.3.1 Holdings hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration,
protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this
Holdings Guaranty and any requirement that Agent or any Secured Party protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take any action against any
Obligor or any other Person or any Collateral.




          15.3.2 Holdings hereby unconditionally and irrevocably waives any right to revoke this
Holdings Guaranty and acknowledges that this Holdings Guaranty is continuing in nature and applies
to all Guaranteed Obligations, whether existing now or in the future.




          15.3.3 Holdings hereby unconditionally and irrevocably waives (a) any defense arising by
reason of any claim or defense based upon an election of remedies by Agent or any Secured Party
that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of Holdings or other rights of
Holdings to proceed against any of the other Obligors, any other guarantor or any other Person or
any Collateral and (b) any defense based on any right of set-off or counterclaim against or in
respect of the Obligations of Holdings hereunder.




          15.3.4 Holdings acknowledges that Agent may, without notice to or demand upon Holdings and
without affecting the liability of Holdings under this Holdings Guaranty, foreclose under any
mortgage by nonjudicial sale, and Holdings hereby waives any defense to the recovery by Agent and
the other Secured Parties against Holdings of any deficiency after such nonjudicial sale and any
defense or benefits that may be afforded by applicable law.




          15.3.5 Holdings waives, to the extent permitted by applicable law:




          (a) all rights and defenses arising out of an election of remedies by the Agent and the
Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to
security for a guaranteed obligation, has destroyed such Obligor’s rights of subrogation and
reimbursement against the principal by the operation of Section 580d of the California Code of
Civil Procedure or otherwise,




          (b) any defense, right of set-off, claim or counterclaim whatsoever and any and all other
rights, benefits, protections and other defenses available to Holdings now or at any time
hereafter, including under California Civil Code Sections 2787 to 2855, inclusive, and California
Code of Civil Procedure Sections 580a, 580b, 580d or 726, and all successor sections, whether or
not constituting Applicable Law;




          (c) any rights, benefits, and defenses that are or may become available to such Obligated
Party by reason of California Civil Code §§2845 and 2850, which would otherwise require the Agent
to proceed against another Obligated Party or any other Person, or to proceed against or exhaust
any security held by the Agent at any time, or to first apply any security of any Obligated Party
to the discharge of the Obligations, or to pursue any other remedy in the Agent’s power before
proceeding against such Obligated Party hereunder.




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          (d) any and all rights, benefits and defenses under California Civil Code §2849, which
provides that a surety is entitled to the benefit of every security for the performance of the
principal obligation held by the creditor.




          (e) any rights and defenses that are or may become available to Holdings by reason of
California Civil Code Section 2856(a)(1)-(3), inclusive, which includes, without limitation, any
rights and defenses that are or may become available to Holdings by reason of California Civil Code
Sections 2787 to 2855.




          (f) any right or defense it may have at law or equity, including California Code of Civil
Procedure Section 580a, to a fair market value hearing or action to determine a deficiency judgment
after a foreclosure.




          (g) any rights, benefits, and defenses that are or may become available to Holdings by reason
of California Civil Code Section 2810 (which generally provides that a surety is not liable if for
certain reasons there is no liability upon the part of the principal or if the principal ceases to
become liable) and under California Civil Code Section 2809 (which generally provides that the
obligation of a surety must not be larger nor more burdensome than that of the principal); and




          (h) all other principles or provisions of law, if any, that conflict with the terms of this
Section 15.3, including the effect of any circumstances that may or might constitute a legal or
equitable discharge of a guarantor or surety.




Without limiting the applicability of the equivalent code provisions under New York law, the
foregoing references to the California Code of Civil Procedure and the California Civil Code shall
apply if, notwithstanding the provisions of Section 14.13, the laws of the State of California are
applied to the Loan Documents; provided, that the inclusion of such provisions does not affect or
limit in any way the parties’ choice of New York law.




          15.3.6 Holdings hereby unconditionally and irrevocably waives any duty on the part of Agent or
any Secured Party to disclose to Holdings any matter, fact or thing relating to the business,
financial condition, operations, or performance of any other Obligor or any of its Subsidiaries now
or hereafter known by Agent or such Secured Party.




          15.3.7 Holdings acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loan Documents and that the waivers set forth
in Section 15.2 and this Section 15.3 are knowingly made in contemplation of such benefits.




     15.4 Subrogation. Holdings hereby unconditionally and irrevocably agrees not to
exercise any rights that it may now have or hereafter acquire against any Borrower, any other
Obligor or any other insider guarantor that arise from the existence, payment, performance or
enforcement of Holdings’s Obligations under or in respect of this Holdings Guaranty or any other
Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or remedy of Agent or any
Secured Party against any Borrower, any other Obligor or any other insider guarantor or any
Collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from any Borrower, any other Obligor or any other insider
guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until all of the
Guaranteed Obligations (other than contingent indemnification obligations) and all other amounts
payable under this Holdings Guaranty shall have been paid in full in cash, all Letters of Credit
and all Bank Product Debt shall have expired or been terminated or Cash Collateralized and the
Commitments shall have expired or been terminated. If any amount shall



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be paid to Holdings in
violation of the immediately preceding sentence at any time prior to the Full Payment of the
Obligations and all other amounts payable under this Holdings Guaranty, such amount shall be
received and held in trust for the benefit of the Secured Parties, shall be segregated from other
property and funds of Holdings and shall forthwith be paid or delivered to Agent in the same form
as so received (with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Holdings Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held as Collateral for
any Guaranteed Obligations or other amounts payable under this Holdings Guaranty thereafter
arising. If Holdings shall make payment to any Secured Party of all or any part of the Guaranteed
Obligations, and Full Payment of the Obligations shall occur, then the Secured Parties will, at
Holdings’ request and expense, execute and deliver to Holdings appropriate documents, without
recourse and without representation or warranty, necessary to evidence the transfer by subrogation
to Holdings of an interest in the Guaranteed Obligations resulting from such payment made by
Holdings pursuant to this Holdings Guaranty.



     15.5 Subordination. Holdings hereby subordinates any and all debts, liabilities and
other Obligations owed to Holdings by each other Obligor (the “Intercompany Obligations”)
to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this
Section 15.5:



          15.5.1 Prohibited Payments, Etc. Except (a) during the continuance of any Event of
Default under Sections 11.1(a) or (j) or (b) after notice from the Agent or any Lender of any other
Event of Default under this Agreement, Holdings may receive regularly scheduled payments from any
other Obligor on account of the Intercompany Obligations. During the continuance of any Event of
Default under Sections 11.1(a) or (j) or after notice from the Agent or any Lender of any other
Event of Default under this Agreement, however, Holdings shall not demand, accept or take any
action to collect any payment on account of the Intercompany Obligations unless the Required
Lenders otherwise agree.




          15.5.2 Prior Payment of Guaranteed Obligations. In any Insolvency Proceeding relating
to any other Obligor, Holdings agrees that the Secured Parties shall be entitled to receive payment
in full in cash of all Guaranteed Obligations (other than contingent indemnification obligations,
but including all interest, expenses and fees (including reasonable legal fees) accruing after the
commencement of any Insolvency Proceeding, whether or not constituting an allowed claim in such
proceeding (“Post Petition Interest”)) before Holdings receives payment of any Intercompany
Obligations.




          15.5.3 Turn-Over. After the occurrence and during the continuance of any Event of
Default (including the commencement and continuation of any Insolvency Proceeding relating to any
other Obligor), Holdings shall, if Agent so requests, collect, enforce and receive payments on
account of the Intercompany Obligations as trustee for the Secured Parties and deliver such
payments to Agent on account of the Guaranteed Obligations (including all Post Petition Interest),
together with any necessary endorsements or other instruments of transfer, but without reducing or
affecting in any manner the liability of Holdings under the other provisions of this Holdings
Guaranty.




          15.5.4 Agent Authorization. After the occurrence and during the continuance of any
Event of Default (including the commencement and continuation of any Insolvency Proceeding relating
to any other Obligor), Agent is authorized and empowered (but without any obligation to so do),
in its discretion, (i) in the name of Holdings, to collect and enforce, and to submit claims
in respect of, Intercompany Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post Petition Interest), and (ii) to require Holdings (A) to
collect and enforce, and to submit claims in respect of, Intercompany Obligations and (B) to pay
any amounts received on such obligations to Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).




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     15.6 Continuing Guaranty; Assignments. This Holdings Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until the Full Payment of the Obligations,
(b) be binding upon Holdings, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Secured Parties and their successors, transferees and assigns. Without limiting
the generality of clause (c) of the immediately preceding sentence, any Secured Party may
assign or otherwise transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitments, the Loans owing to it and
the Note or Notes held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Secured Party herein or otherwise,
in each case as and to the extent provided in Section 13.3. Holdings shall not have the right to
assign its rights hereunder or any interest herein without the prior written consent of the Secured
Parties.



[Remainder of page intentionally left blank; signatures begin on following page]




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     IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set forth
above.



	 	 	 	 	 
	 	BORROWERS:



ALON REFINING KROTZ SPRINGS, INC., a Delaware corporation

 	 
	 	By:  	/s/ Jeff D. Morris
 	 
	 	Title: 	 President, Chief Executive Officer 	 
	 
	 	Address: 	
7616 LBJ Freeway

Suite 300

Dallas, TX 75251

Attn:  General Counsel

Telecopy: (972) 367-3724 	 
	 
	 	HOLDINGS:



ALON REFINING LOUISIANA, INC., a Delaware corporation

 	 
	 	By:  	/s/ Jeff D. Morris
 	 
	 	Title: 	 President, Chief Executive Officer 	 
	 
	 	Address: 	
7616 LBJ Freeway

Suite 300

Dallas, TX 75251

Attn:  General Counsel

Telecopy: (972) 367-3724 	 
	 




 









 






	 	 	 	 	 
	 	AGENT AND
LENDERS:


BANK OF AMERICA, N.A.,

as Agent and Lender

 	 
	 	By:  	/s/ Todd Eggertsen
 	 
	 	Title: 	 Vice President 	 
	 
	 	Address: 	Bank of America, N.A.

55 S. Lake Avenue, Suite 900

Pasadena, California  91101

Attention: Todd Eggertsen, Vice President

Telecopy No.: (626) 584-4602


with copies to:


Gary Samson, Esq.

McGuireWoods LLP

1800 Century Park East, 8th Floor

Los Angeles, California 90067

Telecopy No.:  (310) 956-3148