exv10w1



 





Exhibit 10.1




EXECUTION COPY


 


Published CUSIP Number:                     








REVOLVING CREDIT AGREEMENT




Dated as of May 31, 2007




among




WESTERN REFINING, INC.,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender,

and L/C Issuer




and




The Lenders Party Hereto




GENERAL ELECTRIC CAPITAL CORPORATION

and

PNC BANK, NATIONAL ASSOCIATION,

Co-Syndication Agents




THE BANK OF NOVA SCOTIA

and

WACHOVIA BANK, NATIONAL ASSOCIATION,

Co-Documentation Agents




BANC OF AMERICA SECURITIES LLC,

as

Sole Lead Arranger and Sole Book Manager




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	Section	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	 	1.01	 	 	Defined Terms
	 	 	1	 
	 	1.02	 	 	Other Interpretive Provisions
	 	 	27	 
	 	1.03	 	 	Accounting Terms
	 	 	27	 
	 	1.04	 	 	Rounding
	 	 	28	 
	 	1.05	 	 	Times of Day
	 	 	28	 
	 	1.06	 	 	Letter of Credit Amounts
	 	 	28	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	28	 
	 	2.01	 	 	Committed Loans
	 	 	28	 
	 	2.02	 	 	Borrowings, Conversions and Continuations of Committed Loans
	 	 	29	 
	 	2.03	 	 	Letters of Credit
	 	 	30	 
	 	2.04	 	 	Swing Line Loans
	 	 	37	 
	 	2.05	 	 	Prepayments
	 	 	40	 
	 	2.06	 	 	Termination or Reduction of Commitments
	 	 	40	 
	 	2.07	 	 	Repayment of Loans
	 	 	41	 
	 	2.08	 	 	Interest
	 	 	41	 
	 	2.09	 	 	Fees
	 	 	42	 
	 	2.10	 	 	Computation of Interest and Fees; Retroactive Adjustments of
Applicable Rate
	 	 	42	 
	 	2.11	 	 	Evidence of Debt
	 	 	43	 
	 	2.12	 	 	Payments Generally; Administrative Agent’s Clawback
	 	 	43	 
	 	2.13	 	 	Sharing of Payments by Lenders
	 	 	44	 
	 	2.14	 	 	Borrowing Base Determinations; Mandatory Prepayments of Loans
	 	 	45	 
	 	2.15	 	 	Security
	 	 	46	 
	 	2.16	 	 	Increase in Commitments
	 	 	46	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	47	 
	 	3.01	 	 	Taxes
	 	 	47	 
	 	3.02	 	 	Illegality
	 	 	49	 
	 	3.03	 	 	Inability to Determine Rates
	 	 	49	 
	 	3.04	 	 	Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	49	 
	 	3.05	 	 	Compensation for Losses
	 	 	51	 
	 	3.06	 	 	Mitigation Obligations; Replacement of Lenders
	 	 	51	 
	 	3.07	 	 	Survival
	 	 	52	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	52	 
	 	4.01	 	 	Conditions to Initial Credit Extension Hereunder
	 	 	52	 
	 	4.02	 	 	Conditions to all Credit Extensions
	 	 	55	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES	 	 	56	 
	 	5.01	 	 	Existence, Qualification and Power; Compliance with Laws
	 	 	56	 
	 	5.02	 	 	Authorization; No Contravention
	 	 	56	 
	 	5.03	 	 	Governmental Authorization; Other Consents
	 	 	56	 






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	Section	 	Page	 
	 	5.04	 	 	Binding Effect
	 	 	56	 
	 	5.05	 	 	Financial Statements; No Material Adverse Effect
	 	 	57	 
	 	5.06	 	 	Litigation
	 	 	57	 
	 	5.07	 	 	No Default
	 	 	57	 
	 	5.08	 	 	Ownership of Property; Liens
	 	 	57	 
	 	5.09	 	 	Environmental Compliance
	 	 	58	 
	 	5.10	 	 	Insurance
	 	 	58	 
	 	5.11	 	 	Taxes
	 	 	58	 
	 	5.12	 	 	ERISA Compliance
	 	 	58	 
	 	5.13	 	 	Subsidiaries; Equity Interests
	 	 	58	 
	 	5.14	 	 	Margin Regulations; Investment Company Act
	 	 	59	 
	 	5.15	 	 	Disclosure
	 	 	59	 
	 	5.16	 	 	Compliance with Laws
	 	 	59	 
	 	5.17	 	 	Intellectual Property; Licenses, etc
	 	 	59	 
	 	5.18	 	 	Solvency
	 	 	59	 
	 	5.19	 	 	Collateral Documents
	 	 	60	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS	 	 	60	 
	 	6.01	 	 	Financial Statements
	 	 	60	 
	 	6.02	 	 	Certificates; Field Audits; Other Information
	 	 	61	 
	 	6.03	 	 	Notices
	 	 	63	 
	 	6.04	 	 	Payment of Obligations
	 	 	64	 
	 	6.05	 	 	Preservation of Existence, etc
	 	 	64	 
	 	6.06	 	 	Maintenance of Properties
	 	 	64	 
	 	6.07	 	 	Maintenance of Insurance
	 	 	64	 
	 	6.08	 	 	Compliance with Laws and Contractual Obligations
	 	 	66	 
	 	6.09	 	 	Books and Records
	 	 	66	 
	 	6.10	 	 	Inspection Rights; Field Audits
	 	 	66	 
	 	6.11	 	 	Use of Proceeds
	 	 	66	 
	 	6.12	 	 	Guarantors; Additional Security Agreements
	 	 	66	 
	 	6.13	 	 	Prepayment of Giant Subordinated Notes
	 	 	68	 
	 	6.14	 	 	Further Assurances
	 	 	68	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS	 	 	69	 
	 	7.01	 	 	Liens
	 	 	69	 
	 	7.02	 	 	Investments
	 	 	70	 
	 	7.03	 	 	Indebtedness
	 	 	71	 
	 	7.04	 	 	Fundamental Changes
	 	 	72	 
	 	7.05	 	 	Dispositions
	 	 	72	 
	 	7.06	 	 	Restricted Payments
	 	 	73	 
	 	7.07	 	 	Change in Nature of Business
	 	 	74	 
	 	7.08	 	 	Transactions with Affiliates
	 	 	74	 
	 	7.09	 	 	Burdensome Agreements
	 	 	74	 
	 	7.10	 	 	Use of Proceeds
	 	 	74	 
	 	7.11	 	 	Financial Covenants
	 	 	75	 
	 	7.12	 	 	Capital Expenditures
	 	 	75	 
	 	7.13	 	 	Prepayment of Certain Other Indebtedness
	 	 	75	 






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	Section	 	Page	 
	 	7.14	 	 	Amendments to Term Loan Documents
	 	 	75	 
	 	7.15	 	 	Designation of Senior Debt
	 	 	76	 
	 	7.16	 	 	Giant Subordinated Notes
	 	 	76	 
	 	7.17	 	 	Restrictions on Giant Companies Prior to the Subordinated
Debt Prepayment Date
	 	 	76	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES	 	 	77	 
	 	8.01	 	 	Events of Default
	 	 	77	 
	 	8.02	 	 	Remedies Upon Event of Default
	 	 	79	 
	 	8.03	 	 	Application of Funds
	 	 	79	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT	 	 	80	 
	 	9.01	 	 	Appointment and Authority
	 	 	80	 
	 	9.02	 	 	Rights as a Lender
	 	 	81	 
	 	9.03	 	 	Exculpatory Provisions
	 	 	81	 
	 	9.04	 	 	Reliance by Administrative Agent
	 	 	82	 
	 	9.05	 	 	Delegation of Duties
	 	 	82	 
	 	9.06	 	 	Resignation of Administrative Agent
	 	 	82	 
	 	9.07	 	 	Non-Reliance on Administrative Agent and Other Lenders
	 	 	83	 
	 	9.08	 	 	No Other Duties, etc
	 	 	83	 
	 	9.09	 	 	Administrative Agent May File Proofs of Claim
	 	 	83	 
	 	9.10	 	 	Collateral and Guaranty Matters
	 	 	84	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS	 	 	85	 
	 	10.01	 	 	Amendments, etc
	 	 	85	 
	 	10.02	 	 	Notices; Effectiveness; Electronic Communication
	 	 	87	 
	 	10.03	 	 	No Waiver; Cumulative Remedies
	 	 	88	 
	 	10.04	 	 	Expenses; Indemnity; Damage Waiver
	 	 	89	 
	 	10.05	 	 	Payments Set Aside
	 	 	90	 
	 	10.06	 	 	Successors and Assigns
	 	 	90	 
	 	10.07	 	 	Treatment of Certain Information; Confidentiality
	 	 	94	 
	 	10.08	 	 	Right of Setoff
	 	 	94	 
	 	10.09	 	 	Interest Rate Limitation
	 	 	95	 
	 	10.10	 	 	Counterparts; Integration; Effectiveness
	 	 	95	 
	 	10.11	 	 	Survival of Representations and Warranties
	 	 	95	 
	 	10.12	 	 	Severability
	 	 	96	 
	 	10.13	 	 	Replacement of Lenders
	 	 	96	 
	 	10.14	 	 	Governing Law; Jurisdiction; etc
	 	 	96	 
	 	10.15	 	 	Waiver of Jury Trial
	 	 	97	 
	 	10.16	 	 	No Advisory or Fiduciary Responsibility
	 	 	97	 
	 	10.17	 	 	USA Patriot Act Notice
	 	 	98	 
	 	10.18	 	 	OTHER LIENS ON COLLATERAL; TERMS OF
INTERCREDITOR AGREEMENT; ETC
	 	 	98	 
	 	10.19	 	 	Designated Indebtedness
	 	 	99	 
	 	10.20	 	 	Termination of Commitments Under Existing Credit Agreements
	 	 	99	 
	 	10.21	 	 	ENTIRE AGREEMENT
	 	 	99	 






-iii-









 






SCHEDULES




	 	 	 
	1.01
	 	Existing Letters of Credit
	2.01
	 	Commitments and Applicable Percentages
	5.06
	 	Certain Litigation
	5.13
	 	Subsidiaries and Other Equity Interests
	7.01
	 	Existing Liens
	7.02
	 	Investments
	10.02
	 	Administrative Agent’s Office; Certain Addresses for Notices






EXHIBITS




	 	 	 
	 	 	Form of
	 
	A-1
	 	Loan Notice
	A-2
	 	Swing Line Loan Notice
	B
	 	Note
	C
	 	Compliance Certificate
	D
	 	Assignment and Assumption
	E
	 	Opinion
	F
	 	Borrowing Base Report
	G
	 	Security Agreement
	H
	 	Guaranty
	I
	 	Intercreditor Agreement







-iv-









 








REVOLVING CREDIT AGREEMENT




     This REVOLVING CREDIT AGREEMENT (“this “Agreement”) is entered into as of May 31,
2007, among WESTERN REFINING, INC., a Delaware corporation (the “Borrower”), each lender
from time to time party hereto (collectively, the “Lenders,” and each individually, a
“Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender, L/C
Issuer and a Lender.



     The Borrower has requested that the Lenders provide a revolving credit facility to the
Borrower, and the Lenders have indicated their willingness to lend and the L/C Issuer has indicated
its willingness to issue Letters of Credit, in each case, on the terms and subject to the
conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.



DEFINITIONS AND ACCOUNTING TERMS




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



     “Acquisition” means any transaction or series of related transactions resulting in,
directly or indirectly, (a) the purchase or other acquisition (in one transaction or a series of
transactions) of a material asset of another Person such as a Refinery, or assets of another
Person that constitute a business unit or all or a substantial part of the business of such Person,
or (b) the acquisition of all of the Equity Interests of a Person.



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



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



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



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



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



     “Agreement” means this Revolving Credit Agreement, as the same may hereafter be
renewed, extended, amended or restated from time to time.



     “Albuquerque Terminal” means the terminal owned and operated by Giant Mid-Continent,
located in or near Albuquerque, New Mexico.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time. If the commitment of each Lender to make Loans and the obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02
or if the



 









 







Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall
be determined based on the Applicable Percentage of such Lender most recently in effect, giving
effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Consolidated Leverage Ratio as set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 	 	 	 	 	 	 	 	Eurodollar	 	 
	 	 	 	 	 	 	 	 	Rate	 	 
	Pricing	 	Consolidated	 	Commitment	 	Letters of	 	 
	Level	 	Leverage Ratio	 	Fee	 	Credit	 	Base Rate
	1

	 	≤ 1.5
	 	 	0.25	%	 	 	1.25	%	 	 	0.25	%
	2

	 	> 1.5 but ≤ 2.0
	 	 	0.30	%	 	 	1.375	%	 	 	0.375	%
	3

	 	> 2.0 but ≤ 3.0
	 	 	0.35	%	 	 	1.50	%	 	 	0.50	%
	4

	 	> 3.0 but ≤ 3.5
	 	 	0.375	%	 	 	1.75	%	 	 	0.75	%
	5

	 	> 3.5
	 	 	0.50	%	 	 	2.00	%	 	 	1.00	%






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



     The Applicable Rate in effect from the Closing Date through the date of the first adjustment
pursuant to the preceding paragraph shall be Pricing Level 3.



     Notwithstanding anything to the contrary in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



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



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



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



2









 





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



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and the Western Subsidiaries for the fiscal year ended December 31, 2006, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



     “Availability” means, at any time, (a) the lesser of (i) the Aggregate Commitments and
(ii) the Borrowing Base, minus (b) the sum of (i) the Outstanding Amount of all Loans and
(ii) the Outstanding Amount of all Letter of Credit Obligations.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Commitments pursuant to
Section 2.06, and (c) the date of termination of the Commitment of each Lender pursuant to
Section 8.02.



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



     “Barrel” means a volume of forty-two (42) US gallons corrected for temperature to
sixty (60) degrees Fahrenheit.



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



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



     “Bloomfield Refinery” means the refinery owned by San Juan, and operated by Giant
Arizona, located in or near Farmington, New Mexico.



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



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



     “Borrowing Base” means the amount calculated monthly or weekly, as applicable,
pursuant to Section 2.14(a) based upon information contained in the Borrowing Base Report.



     “Borrowing Base Assets” means Eligible Accounts Receivable, Eligible Refinery
Hydrocarbon Inventory, Eligible Lubricants Inventory, and Eligible In-Transit Crude Oil.



3









 





     “Borrowing Base Report” means a report substantially in the form of Exhibit F
hereto.



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



     “Capital Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance which are properly charged to current operations).
For purposes of this definition, (a) the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment or with insurance proceeds shall be included
in Capital Expenditures only to the extent of the gross amount by which such purchase price exceeds
the credit granted by the seller of such equipment for the equipment being traded in at such time
or the amount of such insurance proceeds, as the case may be, and (b) the term “Capital
Expenditures” shall not include Investments.



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Cash Equivalents” means



     (a) readily marketable obligations issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof having maturities of not more
than 360 days from the date of acquisition thereof; provided that the full faith and credit of the
United States of America is pledged in support thereof;



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



     (c) commercial paper issued by any Person organized under the laws of any state of the United
States of America and rated at least “Prime-2” (or the then equivalent grade) by Moody’s or at
least “A-2” (or the then equivalent grade) by S&P, in each case with maturities of not more than
180 days from the date of acquisition thereof; provided that if any such commercial paper is not
rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then
equivalent grade) by S&P, then in order to be considered a permissible Investment for purposes of
Section 7.02(a), the following limitation shall apply: the Borrower and its Subsidiaries
shall not hold more than $40,000,000 in the aggregate of such commercial paper issued by a single
issuer; and



     (d) Investments, classified in accordance with GAAP as current assets of the Borrower or any
of its Subsidiaries, in money market investment programs registered under the Investment Company
Act of 1940, which are administered by financial institutions that have the highest rating
obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to
Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this
definition.



     “Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash



4









 







management arrangements made or entered into at any time, or in effect at any time,
whether directly or
indirectly, and whether as a result of assignment or transfer or otherwise, between the
Borrower or any Subsidiary and any Cash Management Bank.



     “Cash Management Bank” means a Lender or Affiliate of a Lender that is a party to a
Cash Management Agreement, in its capacity as party to such Cash Management Agreement;
provided, however that if such Person ceases to be a Lender or an Affiliate of a Lender,
such Person shall no longer be a “Cash Management Bank.”



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means an event or series of events by which:



     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan), other than the Existing Owners, becomes the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have “beneficial ownership” of all securities that such person
or group has the right to acquire, whether such right is exercisable immediately or only after the
passage of time (such right, an “option right”)), directly or indirectly, of 30% or more of
(i) the direct or indirect Equity Interests of the Borrower or (ii) the Equity Interests of the
Borrower entitled to vote for members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis (and taking into account all such securities that such person or
group has the right to acquire pursuant to any option right);



     (b) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower cease to be composed of individuals
(i) who were members of that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by individuals referred to
in clauses (i) and (ii) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of office as, a member of
that board or equivalent governing body occurs as a result of an actual or threatened solicitation
of proxies or consents for the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or on behalf of the board of
directors); or



     (c) any Person or two or more Persons, other than the Existing Owners, acting in concert shall
have acquired by contract or otherwise, or shall have entered into a contract or arrangement that,
upon consummation thereof, will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or policies of the Borrower, or
control over the Equity Interests of the Borrower entitled to vote for members of the board of
directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into
account all such securities that such Person or group has the right to acquire pursuant to any
option right) representing 30% or more of the combined voting power of such securities.



5









 





     “Ciniza Refinery” means the refinery owned and operated by Giant Arizona, located in
or near Gallup, New Mexico.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986.



     “Collateral” means all property and interests in property and proceeds thereof now
owned or hereafter acquired by the Borrower or any Guarantor and their respective Subsidiaries in
or upon which a Lien now or hereafter exists in favor of the Administrative Agent, for the benefit
of the Lender Secured Parties, whether under this Agreement or under any other document executed by
any such Person and delivered to the Administrative Agent or any Lender Secured Party.



     “Collateral Documents” means, collectively, (a) the Security Agreements, each Deposit
Account Control Agreement, each Investment Account Control Agreement, the Guaranties and all other
security agreements, mortgages, deeds of trust, patent and trademark assignments, lease
assignments, guaranties and other similar agreements executed by the Borrower, any Subsidiary, or
any Guarantor in favor of the Administrative Agent, for the benefit of the Lender Secured Parties,
now or hereafter delivered to the Administrative Agent or any Lender Secured Party pursuant to or
in connection with the transactions contemplated hereby, and all financing statements (or
comparable documents now or hereafter filed in accordance with the UCC or comparable law) against
the Borrower, any Subsidiary or any Guarantor, as debtor, in favor of the Administrative Agent, for
the benefit of the Lender Secured Parties, as secured party, and (b) any amendments, supplements,
modifications, renewals, replacements, consolidations, substitutions and extensions of any of the
foregoing.



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



     “Committed Loan” has the meaning specified in Section 2.01.



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



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income
taxes payable by the Borrower and its Subsidiaries for such period, (iii) depreciation and
amortization expense and (iv) other non-recurring expenses of the Borrower and its Subsidiaries
reducing such Consolidated Net Income which do not represent a cash item in such period or any
future period and minus (b) the following to the extent included in calculating such Consolidated
Net Income: all non-cash items increasing Consolidated Net Income for such period.



     For purposes of determining the Consolidated Leverage Ratio on June 30, 2007, September 30,
2007, December 31, 2007, and March 31, 2008, Consolidated EBITDA for the fiscal quarters ended on
each such date (with respect to the portion of each such period ending prior to the Closing Date)
shall be calculated on a pro forma basis to include the EBITDA of the Giant Companies for such
period. (“EBITDA of the Giant Companies” shall be calculated for the Giant Companies on a
consolidated basis



6









 







in a manner consistent with the definition of “Consolidated EBITDA” set forth above.) If
requested by the Administrative Agent, the Borrower shall deliver such documentation as may be
reasonably requested by the Administrative Agent with respect to the calculations of such
Consolidated EBITDA and the Administrative Agent shall be reasonably satisfied with such
calculations.



     If, since the beginning of any four fiscal quarter period for which Consolidated EBITDA is
being determined, the Borrower or a Subsidiary shall have consummated an Acquisition, then
Consolidated EBITDA for such period shall be calculated giving pro forma effect to such Acquisition
(including the revenues of the properties acquired), as if such Acquisition had occurred on the
first day of such period. Such pro forma adjustments shall be calculated in a manner satisfactory
to the Administrative Agent.



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



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such
date to (b) Consolidated Interest Charges for such period; provided, however that the
Consolidated Interest Coverage Ratio as of September 30, 2007 shall mean the ratio of (a)
Consolidated EBITDA for the period of the three fiscal quarters ending on such date to (b)
Consolidated Interest Charges for such period. The following is included in this definition for
the avoidance of doubt: in calculating the Consolidated Interest Coverage Ratio, the Borrower will
not make pro forma adjustments to Consolidated EBITDA or Consolidated Interest Charges to reflect
the Giant Companies’ results for the period preceding the Merger.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Total Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended.



     “Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries as determined in
accordance with GAAP (excluding extraordinary gains and extraordinary losses) for that period;
provided, that, there shall be excluded from such net income (to the extent
otherwise included therein) the income (or loss) of any entity other than a Subsidiary in which the
Borrower or any Subsidiary has an ownership interest, except to the extent that any such income has
been actually received by the Borrower or such Subsidiary in the form of cash dividends or similar
cash distributions.



     “Consolidated Total Indebtedness” means, as of any date of determination, Indebtedness
of the Borrower and its Subsidiaries on a consolidated basis, other than (a) undrawn or unfunded
amounts under letters of credit, surety bonds and similar instruments, and (b) Indebtedness
pursuant to Swap Contracts that have not been closed out or terminated.



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



7









 





     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



     “Control Agent” has the meaning set forth in the Intercreditor Agreement.



     “Credit Extension” means (a) a Borrowing, (b) a Swing Line Borrowing and (c) an L/C
Credit Extension.



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



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



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



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Committed Loans, participations in L/C Obligations or participations in Swing Line Loans required
to be funded by it hereunder within one Business Day of the date required to be funded by it
hereunder unless such failure has been cured, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within one Business Day of the date when due, unless the subject of a good faith dispute or unless
such failure has been cured, or (c) has been deemed insolvent or become the subject of a bankruptcy
or insolvency proceeding.



     “Deposit Account Control Agreement” means an agreement substantially in the form of
Annex G to the form of Security Agreement attached as Exhibit G hereto or any other
agreement in form and substance satisfactory to the Administrative Agent serving a similar purpose,
among a Loan Party, the Administrative Agent or the Control Agent, and a Depository Bank.



     “Depository Bank” means a bank, savings bank, savings and loan association, credit
union, trust company, or other depository institution that has entered into a Deposit Account
Control Agreement.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith, the Net Cash Proceeds of which
are $1,000,000.00 or more.



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



     “El Paso Refinery” means the refineries owned and operated by the Borrower located at
6500 Trowbridge Drive, El Paso, Texas.



     “Eligible Account Obligor” means, on any date, any Person obligated to pay a
Receivable (a) that is not the Borrower, a Subsidiary or an Affiliate of the Borrower; (b) that has
not filed for, and is not



8









 







currently the object of, a proceeding relating to its bankruptcy, insolvency, reorganization,
winding-up or composition or reorganization of debts; (c) that is in good standing with the
Borrower and its Subsidiaries and satisfies all applicable credit standards of the Borrower and its
Subsidiaries; and (d) for which not more than 50% of the aggregate value of the Receivables of such
account debtor have not been paid by the date 30 days after the respective due dates therefor.



     “Eligible Accounts Receivable” means, on any date, all Receivables denominated in
Dollars payable by Eligible Account Obligors, except:



     (a) billed Receivables that have not been paid by the date 30 days after the respective due
dates therefor;



     (b) any Receivable subject to any asserted defense, dispute, claim, offset or counterclaim,
unless (i) the applicable account debtor has entered into an agreement acceptable to the
Administrative Agent to waive the foregoing rights, or (ii) with respect to any such Receivable,
(A) Chevron U.S.A. Inc. or Chevron Pipe Line Company (collectively, “Chevron”) (or any
Affiliate of Chevron) is the applicable account debtor, (B) the Borrower’s obligation to pay for
crude oil constitutes the applicable setoff, and (C) the Borrower’s payment obligation is fully
secured by a Letter of Credit; provided that, if any such defense, dispute, claim,
offset or counterclaim is asserted with respect to such Receivable in an amount equal to a sum
certain, then such Receivable shall be an Eligible Account Receivable to the extent the face amount
thereof exceeds such sum certain;



     (c) all Receivables from an account debtor from whom a check, promissory note, draft, trade
acceptance or other instrument for the payment (in whole or in part) of money has been received,
presented for payment and returned uncollected for any reason;



     (d) all Receivables subject to any repurchase or return arrangement;



     (e) Receivables owed to a Loan Party by an Eligible Account Obligor, the aggregate unpaid
balance of which exceeds twenty percent (20%) of the aggregate unpaid balance of all Receivables
owed to the Loan Parties at such time by all of the Loan Parties’ account debtors, but only to the
extent of such excess;



     (f) all Receivables that are payable by their terms more than 30 days from the respective
invoice dates therefor;



     (g) any Receivable in which the Lenders do not have a valid and perfected first priority
security interest;



     (h) any Receivable of a Loan Party with respect to which any event described in Sections
8.01(f) or (g) shall have occurred and be continuing;



     (i) Receivables with respect to which the account debtor is not a Person resident in the
United States;



     (j) Receivables with respect to which goods have been placed on consignment, guaranteed sale
or other terms by reason of which the payment by the account debtor may be conditional;



     (k) Receivables with respect to which an invoice has not been sent prior to the date of any
Borrowing Base Report in which such Receivables are included for purposes of calculation of the
Borrowing Base;



9









 





     (l) Receivables which arise out of any contract or order which, by its terms, forbids or makes
void or unenforceable any assignment by the applicable Loan Party to the Administrative Agent, for
the benefit of the Lender Secured Parties, of the Receivable arising with respect thereto;



     (m) Receivables evidenced by any instrument, unless such instrument has been delivered to the
Administrative Agent for the benefit of the Lender Secured Parties;



     (n) Receivables if the Required Lenders believe, in the exercise of their reasonable judgment,
that the collection thereof is impaired or that the receivable may not be paid by reason of the
account debtor’s inability to pay;



     (o) Receivables that are otherwise identified as unsatisfactory to the Administrative Agent or
the Required Lenders using reasonable business judgment; and



     (p) Receivables owed by the government of the United States of America, or any department,
agency, public corporation, or other instrumentality thereof that do not constitute Eligible U.S.
Government Accounts Receivable; and Receivables owed by any other Governmental Authority unless the
Borrower has satisfied the requirements of applicable law, including delivering documentation
satisfactory to the Administrative Agent, to effectuate the assignment of such Receivables and
establish the right of the Administrative Agent to enforce payment directly against the account
obligor.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)).



     “Eligible Cash” means cash held in a segregated restricted deposit account maintained
with and pledged to the Administrative Agent, for the benefit of the Lender Secured Parties, as
security for the Obligations, and in which the Administrative Agent, for the benefit of the Lender
Secured Parties, has a first priority perfected security interest.



     “Eligible In-Transit Crude Oil” means In-Transit Crude Oil that satisfies the criteria
set forth in the definition of Eligible Refinery Hydrocarbon Inventory (other than the requirements
as to location of such inventory) and, unless otherwise agreed by the Administrative Agent: (a) the
purchase price of which is supported by a Letter of Credit, and (b) as to which the Administrative
Agent has received a third party agreement from the operator of the pipeline in form satisfactory
to the Administrative Agent; in each case valued at the lower of cost (determined in accordance
with GAAP on a FIFO basis) or market value, and determined after, if required by the Administrative
Agent, taking into account transportation and handling charges that affect the value thereto as
determined by the Administrative Agent.



     “Eligible Lubricants Inventory” means, at any date, the aggregate value (which shall
be the lower of cost (determined in accordance with GAAP on a FIFO basis) or market value) of all
readily marketable, saleable and useful Lubricants (excluding (a) any and all Lubricants in which
the Lenders do not have a valid and perfected first priority security interest, except that such
security interest may be subject to statutory Liens in respect of First Purchase Crude Payables
that are not delinquent, (b) any and all Lubricants located on leased premises or held by a bailee
or otherwise subject to any third party interest, with respect to which any landlord’s waiver or
other third party agreement requested by the Administrative Agent or the Required Lenders shall not
have been furnished, and (c) Lubricants of any Subsidiary with respect to which any event described
in Section 8.01(f) or (g) shall have occurred and be continuing), owned by the
Borrower or a Guarantor located at the Refineries or in the Albuquerque Terminal, the Flagstaff
Terminal, or at other terminals, storage tanks and lines related thereto (including line fills but
excluding basic sediment and water and slop oil), bulk plants, service stations and cardlocks,



10









 







in each case owned or leased and operated by the Borrower or Guarantors, or at such other
locations as may be approved from time to time by the Administrative Agent, provided,
however, that such Lubricants are not obsolete, unsalable, damaged or otherwise unfit for
sale or further processing in the ordinary course of business or otherwise unsatisfactory to the
Administrative Agent or the Required Lenders using reasonable business judgment.



     “Eligible Refinery Hydrocarbon Inventory” means, at any date, the aggregate value
(which shall be the lower of cost (determined in accordance with GAAP on a FIFO basis) or market
value) of all readily marketable, saleable and useful Petroleum Inventory (excluding any and all
Petroleum Inventory (a) in which the Lenders do not have a valid and perfected first priority
security interest, except that such security interest may be subject to statutory Liens in respect
of First Purchase Crude Payables that are not delinquent, (b) located on leased premises (other
than Petroleum Inventory at leased service stations and cardlocks operated by the Borrower or one
of the Guarantors), or held by a bailee or otherwise subject to any third party interest with
respect to which a landlord’s waiver or other third party agreement requested by the Administrative
Agent or the Required Lenders shall not have been furnished, (c) attributable to any Subsidiary
with respect to which any event described in Subsection 8.01(f) or (g) shall have
occurred and be continuing, or (d) that is in transit from vendors or suppliers) owned by the
Borrower or a Guarantor and located at the Refineries or in the Albuquerque Terminal, the Flagstaff
Terminal, or at other terminals, field production tanks, storage tanks and lines related thereto
(including line fills but excluding basic sediment and water and slop oil), bulk plants, service
stations and cardlocks, in each case owned or leased and operated by the Borrower or Guarantors, or
at such other locations as may be approved from time to time by the Administrative Agent;
provided, that such Petroleum Inventory is not obsolete, unsalable, damaged or
otherwise unfit for sale or further processing in the ordinary course of business or otherwise
unsatisfactory to the Administrative Agent or the Required Lenders using reasonable business
judgment.



     “Eligible U.S. Government Accounts Receivable” means Eligible Accounts Receivable owed
by the government of the United States of America, or any department, agency, public corporation,
or other instrumentality thereof; provided, that the requirement of acknowledgement
by the government set forth in the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C.
§ 3727 et seq.), and any steps necessary to perfect the Administrative Agent’s Liens therein and to
give the Administrative Agent the right to collect such accounts, have been complied with to the
Administrative Agent’s satisfaction with respect to such accounts.



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



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



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in)



11









 







such Person, all of the securities convertible into or exchangeable for shares of capital
stock of (or other ownership or profit interests in) such Person or warrants, rights or options for
the purchase or acquisition from such Person of such shares (or such other interests), and all of
the other ownership or profit interests in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options,
rights or other interests are outstanding on any date of determination.



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



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



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



     “Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits
(for delivery on the first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the “Eurodollar
Rate” for such Interest Period shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to such Interest Period would
be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.



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



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower



12









 







is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 10.13), any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability
(other than as a result of a Change in Law) to comply with Section 3.01(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new Lending Office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 3.01(a).



     “Existing Giant Credit Agreement” means that certain Fourth Amended and Restated
Credit Agreement dated as of June 27, 2005 among Giant, as borrower, Bank of America as
administrative agent, and the lenders party thereto, as amended.



     “Existing Letters of Credit” means each of the letters of credit issued under either
the Existing Western Credit Agreement or the Existing Giant Credit Agreement, in each case,
outstanding on the Closing Date, including those letters of credit described on Schedule
1.01B.



     “Existing Owners” means those Persons who are owners of the Equity Interests of RHC
Holdings, L.P. , as of the Closing Date, members of their immediate families and Persons (including
trusts established for estate planning purposes) that are Affiliates thereof.



     “Existing Western Credit Agreement” means that certain Amended and Restated Revolving
Credit Agreement dated as of January 24, 2006 among the Borrower and Western Refining Company,
L.P., as borrowers, Bank of America, as administrative agent, and the lenders party thereto.



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



     “Fee Letter” means the letter agreement, dated November 9, 2006, among the Borrower,
the Administrative Agent and the Arranger.



     “Feedstocks” means all crude oil, natural gas liquids, and other Hydrocarbons and
ethanol, in so far as such Feedstocks are used or useful as fuel or in the manufacture, processing,
refining, or blending of Intermediate Products and Refined Products at one or more Refineries.



     “First Purchase Crude Payables” means the unpaid amount of any payable obligation of
the Borrower or any of its Subsidiaries related to the purchase of Feedstocks by the Borrower or
any of its Subsidiaries which are (in the reasonable judgment of the Administrative Agent) secured
by a statutory Lien, which shall include but not be limited to the statutory Liens created under
the Laws of Texas, New Mexico, Wyoming, Kansas, and Oklahoma, to the extent such payable obligation
is not at the time of determination covered by a Letter of Credit issued hereunder.



     “Flagstaff Terminal” means the terminal in or near Flagstaff, Arizona, owned and
operated by Giant Mid-Continent.



13









 





     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each state thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



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



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



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



     “Giant” means Giant Industries, Inc., a Delaware corporation.



     “Giant 8% Subordinated Indenture” means the Indenture dated of May 3, 2004 among
Giant, the subsidiary guarantors therein named and The Bank of New York as trustee, together with
the First Supplemental Indenture dated as of May 3, 2004.



     “Giant 8% Subordinated Notes” means the 8% senior subordinated notes issued by Giant
pursuant to the Giant 8% Subordinated Indenture.



     “Giant 11% Subordinated Indenture” means the Indenture dated May 14, 2002, among
Giant, the subsidiary guarantors therein named and The Bank of New York as trustee.



     “Giant 11% Subordinated Notes” means the 11% senior subordinated notes issued by Giant
pursuant to the Giant 11% Subordinated Indenture.



     “Giant Arizona” means Giant Industries Arizona, Inc., an Arizona corporation.



     “Giant Audited Financial Statements” means the audited consolidated balance sheet of
the Giant and its Subsidiaries for the fiscal year ended December 31, 2006, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of Giant and its Subsidiaries, including the notes thereto.



     “Giant Catastrophic Material Adverse Effect” means any change, event or effect that,
individually or together with other changes, events or effects, has been or would reasonably be
expected to be materially adverse to (x) the business, assets and liabilities (taken together),
results of operations or financial condition of Giant and its Subsidiaries on a consolidated basis
or (y) the ability of Giant to consummate the Merger or the other transactions contemplated by the
Merger Agreement or fulfill the conditions to closing set forth in the Merger Agreement, except to
the extent that such change, event or effect results from (i) general political or economic
conditions (including prevailing interest rates and stock market levels) in the United States or
other countries in which Giant or its Subsidiaries operate, (ii) effects of conditions or events
that are generally applicable to the petroleum refining industry, including effects of changes in
the price of crude oil and product prices, (iii) changes in laws or regulations affecting the
petroleum refining industry generally, (iv) the announcement or pendency of the Merger, or changes
or effects resulting from the taking of any action required to comply with the express terms of the
Merger Agreement, or (v) any stockholder litigation instituted as a result of that certain
Amendment No. 1



14









 







to the Merger Agreement dated as of November 12, 2006; provided, however, that
such changes, events or effects described in clauses (i), (ii) or (iii) do
not affect Giant in a materially disproportionate manner relative to other companies in the
petroleum refining industry. For purpose of clause (x) of this definition, no change, event or
effect shall be considered in determining whether a Giant Catastrophic Material Adverse Effect has
occurred unless it has or is likely to result in losses, liabilities, claims, costs or damages, net
of any available insurance, of $10.0 million or more prior to December 31, 2011, and a Giant
Catastrophic Material Adverse Effect shall not be deemed to have occurred under clause (x) unless
and until such changes, events or effects have or are likely to result in aggregate losses,
liabilities, claims, costs or damages, net of any available insurance, of $200.0 million or more
prior to December 31, 2011.



     “Giant Companies” means Giant and its Subsidiaries.



     “Giant Company Loans” has the meaning set forth in Section 7.17(a)(i).



     “Giant Company Note” has the meaning set forth in Section 7.17(a)(i).



     “Giant Mid-Continent” means Giant Mid-Continent, Inc., an Arizona corporation and a
wholly-owned Subsidiary of Giant Arizona.



     “Giant Subordinated Indentures” means the Giant 11% Subordinated Indenture and the
Giant 8% Subordinated Indenture, collectively.



     “Giant Subordinated Notes” means the Giant 11% Subordinated Notes and the Giant 8%
Subordinated Notes, collectively.



     “Giant Yorktown” means Giant Yorktown, Inc., a Delaware corporation and a wholly-owned
Subsidiary of Giant Arizona.



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



     “Guarantee” means, as to any Person, any (a) obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum



15









 







reasonably anticipated liability in respect thereof as determined by the guaranteeing Person
in good faith. The term “Guarantee” as a verb has a corresponding meaning.



     “Guarantor” means each of Western Refining Company, L.P., a Delaware limited
partnership, Ascarte Group LLC, a Delaware limited liability company, Ciniza Production Company, a
New Mexico corporation, Dial Oil Co., a New Mexico corporation, Empire Oil Company, a California
corporation, Giant, Giant Arizona, Giant Four Corners, Inc., an Arizona corporation, Giant
Mid-Continent, Giant Pipeline Company, a New Mexico corporation, Giant Stop-N-Go of New Mexico,
Inc., a New Mexico corporation, Giant Yorktown, Phoenix Fuel Co., Inc., an Arizona corporation, San
Juan, Western Refining GP, LLC, Western Refining LP, LLC, and each other Subsidiary that now or
hereafter executes a Guaranty pursuant to Section 6.12 hereof.



     “Guaranty” means collectively, the Guaranty Agreements substantially in the form of
Exhibit H hereto executed by Subsidiaries of the Borrower in favor of the Administrative
Agent and the Lender Secured Parties, together with each other guaranty and guaranty supplement
delivered pursuant to this Agreement.



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



     “Hydrocarbons” means oil, gas, casing head gas, condensate, distillate, liquid
hydrocarbons, gaseous hydrocarbons, all products refined, separated, settled and dehydrated
therefrom, including, without limitation, kerosene, liquefied petroleum gas, refined lubricating
oils, diesel fuel, drip gasoline, natural gasoline, and all other minerals.



     “In-Transit Crude Oil” means crude oil purchased by the Borrower or a Guarantor, for
delivery to the Borrower or a Guarantor via pipeline from a vendor or supplier.



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



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



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



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



     (d) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and, in each case, not past
due for more than 60 days after the date on which such trade account payable was created);



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



     (f) capital leases and Synthetic Lease Obligations;



16









 





     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interest in such Person or any other Person, valued, in the case
of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and



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



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed
to be the amount of Attributable Indebtedness in respect thereof as of such date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



     “Information” has the meaning specified in Section 10.07.



     “Intercreditor Agreement” means that certain Intercreditor Agreement substantially in
the form of Exhibit I hereto dated as the date hereof among the Administrative Agent, the
Term Administrative Agent, the Control Agent, and the Loan Parties.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the
last Business Day of each March, June, September and December and the Maturity Date.



     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or, subject to availability, six months thereafter, as
selected by the Borrower in its Loan Notice; provided, that:




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




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




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



     “Intermediate Products” means all Feedstocks that have been partially processed or
refined as isomerate, cat feed, gasoline components or naphtha.



17









 





     “Inventory” means inventory as defined in the UCC, including goods intended for sale,
work in process, raw materials, and materials consumed in the Borrower’s and the Guarantor’s
business.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit or all or a substantial part of the
business of such Person. For purposes of covenant compliance, the amount of any Investment shall
be the amount actually invested, without adjustment for subsequent increases or decreases in the
value of such Investment.



     “Investment Account Control Agreement” means an agreement among a Securities
Intermediary holding a securities account for a Loan Party and the Administrative Agent, in form
and substance satisfactory to the Administrative Agent, evidencing that the Administrative Agent
has “control” (as defined in the UCC) of such securities account.



     “IRS” means the United States Internal Revenue Service.



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



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



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



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



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



     “L/C Issuer” means with respect to each Letter of Credit issued or, in the case of
each Existing Letter of Credit, deemed issued hereunder, Bank of America or such other Lender that
has issued or agreed to issue such Letter of Credit at the request of the Borrower and that is
reasonably acceptable to the Administrative Agent, in its capacity as the issuer of such Letter of
Credit, or any successor issuer of Letters of Credit hereunder. The commitment of each L/C Issuer
(other than Bank of America) to issue Letters of Credit hereunder may be limited to an aggregate
maximum amount for all such Letters of Credit issued by such L/C Issuer that is less than the
Letter of Credit Sublimit, as may be agreed between the Borrower and such L/C Issuer. As used
herein, the term “the L/C Issuer” shall mean “each L/C Issuer” or “the applicable L/C Issuer,” as
the context may require.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all



18









 







purposes of this Agreement, if on any date of determination a Letter of Credit has expired by
its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of
the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining
available to be drawn.



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



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



     “Lender Secured Parties” means the Lenders, the Lender Swap Providers and the Cash
Management Banks.



     “Lender Swap Contracts” means all Swap Contracts made or entered into at any time, or
in effect at any time, whether directly or indirectly, and whether as a result of assignment or
transfer or otherwise, between the Borrower or any Subsidiary and any Lender Swap Provider.



     “Lender Swap Provider” means any Lender or Affiliate of a Lender that is a party to a
Swap Contract with the Borrower or any Subsidiary, in its capacity as party to such Swap Contract;
provided, however, that in the event that such Person ceases to be a Lender or an
Affiliate of a Lender, such Person shall no longer be a “Lender Swap Provider.”



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



     “Letter of Credit” means any standby letter of credit issued or deemed issued
hereunder, including each Existing Letter of Credit.



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



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



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



     “Letter of Credit Sublimit” means an amount equal to $500,000,000. In the event the
Aggregate Commitments are increased pursuant to Section 2.16, if requested by the Borrower
and agreed by the L/C Issuer, the Letter of Credit Sublimit may also be increased provided that it
shall not be greater than the dollar amount of the Aggregate Commitments. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance



19









 







on title to real property, and any financing lease having substantially the same economic
effect as any of the foregoing).



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



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



     “Loan Notice” means a notice of (a) a Borrowing of Committed Loans, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit A-1.



     “Loan Parties” means, collectively, the Borrower, each Guarantor and each Subsidiary
that has executed a Collateral Document; and each individually, a “Loan Party”.



     “Lubricants” means Inventory consisting of motor oil, hydraulic oil, gear oil, cutting
oil, grease, and various chemicals and solvents of a similar nature valued at the lower of cost or
market prices. For avoidance of doubt, Lubricants are not Feedstocks, Intermediate Products or
Refined Products.



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



     “Maturity Date” means May 31, 2012.



     “Merger” means the merger of Newco into Giant, where Giant is to be the surviving
entity and a wholly-owned Subsidiary of the Borrower, as contemplated by the Merger Agreement.



     “Merger Agreement” means that certain Merger Agreement dated as of August 26, 2006
between the Borrower, Newco and Giant, pursuant to which Newco will merge into Giant and Giant, the
surviving entity, will become a wholly-owned subsidiary of the Borrower, as amended by that certain
Amendment No. 1 to the Merger Agreement dated as of November 12, 2006.



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



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



     “Net Cash Proceeds” means with respect to any Disposition by the Borrower or any
Subsidiary, the excess, if any, of (i) the sum of cash and cash equivalents received in connection
with such Disposition (including any cash received by way of deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the
sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset and
that is required to be repaid in connection with such Disposition (other than Indebtedness under
the Loan Documents), (B) the reasonable and customary out-of-pocket expenses incurred by any Loan
Party or any Subsidiary in



20









 







connection with such transaction and (C) income taxes reasonably estimated to be actually
payable within two years of the date of the relevant transaction as a result of any gain recognized
in connection therewith; provided that, if the amount of any estimated taxes pursuant to
subclause (C) exceeds the amount of taxes actually required to be paid in cash in respect of such
transaction, the aggregate amount of such excess shall constitute Net Cash Proceeds.



     “Newco” means New Acquisition Corporation, a Delaware corporation and wholly-owned
Subsidiary of the Borrower.



     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender to the Borrower, substantially in the form of Exhibit B.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising, provided,
that all references to the “Obligations” in the Collateral Documents and the
Intercreditor Agreement shall, in addition to the foregoing, also include all present and future
indebtedness, liabilities and obligations of the Borrower or any Guarantor pursuant to any Lender
Swap Contract or any Cash Management Agreement, in each case including interest and fees that
accrue after the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.



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



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



     “Outstanding Amount” means (a) with respect to Committed Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of such Committed Loans occurring on such date; (b) with respect to Swing
Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to
any borrowings and prepayments or repayments of such Swing Line Loans occurring on such date; and
(c) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any L/C Credit Extension occurring on such date and any other changes
in the aggregate amount of the L/C Obligations as of such date, including as a result of any
reimbursements by the Borrower of Unreimbursed Amounts.



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



     “PBGC” means the Pension Benefit Guaranty Corporation.



21









 





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



     “Permitted Joint Venture” means any Person (other than a Subsidiary) in which the
Borrower owns (including ownership through its Subsidiaries) Equity Interests representing less
than 100% of the total outstanding Equity Interests of such Person, provided that
such Person is engaged only in the businesses that are permitted for the Borrower and its
Subsidiaries pursuant to Section 7.07.



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



     “Petroleum Inventory” means Inventory consisting of refined petroleum products, crude
oil, condensate, natural gas liquids, liquefied petroleum gases, asphalt or any blend thereof.



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



     “Platform” is defined in Section 6.02 hereof.



     “Preferred Eligible Account Obligor” means any Person (a) from which the Eligible
Accounts Receivables are fully supported by a standby letter of credit issued by a commercial bank
organized under the laws of the United States the long-term, non-credit enhanced senior unsecured
debt of which is rated “A2/A” or better by Moody’s and S&P, respectively, or (b) that is a major
international company the long-term, non-credit enhanced senior unsecured debt of which is rated
“A2/A” or better by Moody’s and S&P, respectively, or a wholly-owned Subsidiary of such company
whose obligations are guaranteed by such company.



     “Property” means the Refineries and the real estate upon which the Refineries are
located, other real estate owned by one or more Loan Parties, and the interests in real property
created by easements or rights of way in favor of any Loan Party, together with all Loan Parties’
interests in the improvements thereon, the fixtures and equipment located thereon or located
elsewhere and used in the Borrower’s and its Subsidiaries’ business.



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



     “Receivables” means, as to the Borrower or any of its Subsidiaries (other than
“inactive” Subsidiaries), all accounts receivable, whether billed or unbilled, arising out of the
sale of inventory in the ordinary course of business.



     “Refinancing Indebtedness” has the meaning set forth in Section 7.03(b).



     “Refined Products” means all gasoline, diesel, aviation fuel, fuel oil, propane,
ethanol, transmix, and other products processed, refined or blended from Feedstocks and
Intermediate Products.



     “Refineries” means, collectively, the Bloomfield Refinery, the Ciniza Refinery, the El
Paso Refinery and the Yorktown Refinery. The term “Refineries” shall also include any refinery
acquired by the Borrower or a Subsidiary of the Borrower after the Closing Date.



22









 





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



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



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



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



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided, that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, chief accounting officer, treasurer or assistant treasurer of a Loan Party. Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party. With respect to documents delivered pursuant to Article IV,
the term “Responsible Officer” shall also include the chief administrative officer of the Borrower.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Borrower’s stockholders, partners or members (or the
equivalent Person thereof), or any option, warrant or other right to acquire any such dividend or
other distribution or payment.



     “Revolver Casualty Proceeds Account” has the meaning set forth in Section
6.07(f).



     “Revolver Priority Collateral” shall have the meaning set forth in the Intercreditor
Agreement. After repayment of the obligations under the Term Loan Credit Agreement and release of
the Liens securing same, the term “Revolver Priority Collateral” shall mean all Collateral.



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



     “San Juan” means San Juan Refining Company, a New Mexico corporation.



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



23









 





     “Securities Intermediary” means Bank of America, N.A. and any other Person (including
a bank or broker) that maintains a securities account for the Borrower in which a security interest
has been created in favor of the Administrative Agent for the benefit of the Lender Secured Parties
to secure the Obligations, and that has entered into an Investment Account Control Agreement.



     “Security Agreements” means, collectively, each Security Agreement substantially in
the form of Exhibit G hereto, executed by the Borrower and each Subsidiary in favor of the
Administrative Agent, for the benefit of the Lender Secured Parties, as renewed, extended, amended
or restated from time to time.



     “Solvent” means, as to any Person at any time, that (a) the fair value of the property
of such Person is greater than the total amount of such Person’s liabilities (including contingent
liabilities), (b) the present fair saleable value of all of the property of such Person is not less
than the amount that will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities
mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person’s property would constitute unreasonably small
capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and
other commitments as they mature in the ordinary course of business. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.



     “Statoil” means Statoil Marketing & Trading (US) Inc.



     “Statoil Commingled Inventories” means the commingled product or mass resulting from
the commingling (whether by blending, mixing, processing or otherwise) of Eligible Refinery
Hydrocarbon Inventory with crude oil supplied by Statoil and that constitutes “Commingled
Inventories” within the meaning of the Statoil Intercreditor Agreement. For purposes of
calculation of the Borrowing Base, the value of Statoil Commingled Inventories shall be equal to
the product obtained by multiplying (x) the applicable quantities of Statoil Commingled Inventories
(measured in Barrels in accordance with the Statoil Purchase Agreement) by (y) the lowest price per
Barrel of the lowest priced crude oil (using the lower of cost or market value) included in Statoil
Commingled Inventories. For purposes of clarity, the “lowest price” shall be the absolute lowest
figure and not the average of applicable prices during the applicable time period.



     “Statoil Intercreditor Agreement” means that certain Intercreditor Agreement dated as
of February 9, 2004 between Statoil and the Administrative Agent. As used in the Statoil
Intercreditor Agreement, the term “Inventory Component of the Borrowing Base” means
Inventory included in the Borrowing Base.



     “Statoil Purchase Agreement” means that certain Crude Oil Purchase/Sale Agreement
2004/2008 between Statoil and Giant Yorktown, as amended by amendment dated December 8, 2004 and as
the same may be further amended in compliance with the terms of this Agreement.



     “Statoil Segregated Inventories” means crude oil supplied by Statoil to Giant Yorktown
pursuant to the Statoil Purchase Agreement that constitutes segregated, identifiable Statoil
Inventories within the meaning of the Statoil Intercreditor Agreement. Statoil Segregated
Inventories shall at all times be excluded from Eligible Refinery Hydrocarbon Inventory for
purposes of calculation of the Borrowing Base, but may otherwise be included within the Collateral
(subject to the terms of the Statoil Intercreditor Agreement).



24









 





     “Subordinated Debt Prepayment Date” shall mean the date upon which all of the Giant
11% Subordinated Notes and all of the Giant 8% Subordinated Notes shall have been redeemed, all as
further described in and required by Section 6.13.



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



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



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination values determined in accordance therewith, such termination values, and (b) for any
date prior to the date referenced in clause (a), the amounts determined as the
mark-to-market values for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).



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



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



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



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
A-2.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $25,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the



25









 







insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



     “Term Administrative Agent” means Bank of America in its capacity as administrative
agent for the lenders under the Term Loan Documents (together with any successor thereto in such
capacity).



     “Term Collateral Documents” means the “Collateral Documents” under, and as defined in,
the Term Loan Credit Agreement.



     “Term Loan Credit Agreement” means that certain Term Loan Credit Agreement dated as of
even date herewith, among the Borrower, as borrower, Bank of America, as administrative agent, and
the financial institutions parties thereto.



     “Term Loan Documents” means the “Loan Documents” under, and as defined in, the Term
Loan Credit Agreement, and any documents governing refinancings, renewals and extensions of the
Indebtedness under the Term Loan Credit Agreement that are permitted by Section 7.03(b).



     “Term Loan Indebtedness” means Indebtedness under the Term Loan Credit Agreement and
all refinancings, renewals and extensions thereof that are permitted by Section 7.03(b) .



     “Term Loan Maximum Amount” means $1,400,000,000 plus the dollar amount of any
increases in the Commitments as defined in the Term Loan Credit Agreement pursuant to Sections
2.13 thereof and the dollar amount of any increases in the Commitments as therein defined to
make Loans pursuant to Section 2.14 thereof to fund Acquisitions by the Borrower and its
Subsidiaries and related transaction costs, provided that the aggregate increases pursuant
to Section 2.13 of the Term Loan Credit Agreement shall not exceed, when added to the
increases in Commitments hereunder pursuant to Section 2.16, $300,000,000.



     “Term Priority Collateral” shall have the meaning set forth in the Intercreditor
Agreement.



     “Term Priority Liens” means the Liens of the Term Administrative Agent on the Term
Priority Collateral pursuant to the Term Collateral Documents.



     “Terminal” means the Flagstaff Terminal, the Albuquerque Terminal and all other
finished product, asphalt, crude oil, and other storage terminals, tanks and lines and facilities
related thereto owned or leased by the Borrower and its Subsidiaries, in each case not located on
Refinery premises.



     “Threshold Amount” means $50,000,000.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



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



     “UCC” means the Uniform Commercial Code, including each such provision as it may
subsequently be renumbered, as enacted in the State of New York or other applicable jurisdiction,
as amended at the time in question.



26









 





     “Unfunded Pension Liability” means 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.



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



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



     “Western Subsidiaries” means all subsidiaries of the Borrower other than the Giant
Companies.



     “Yorktown Refinery” means the refinery located in or near Yorktown, Virginia, and the
land and other real estate appurtenant thereto, owned and operated by Giant Yorktown.



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



     (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word
“shall.” Unless the context requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time to time amended,
supplemented, amended and restated or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any
reference herein to any Person shall be construed to include such Person’s successors and assigns,
(iii) the words “herein,” “hereof” and “hereunder,” and words of similar
import when used in any Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference
to any law shall include all statutory and regulatory provisions consolidating, amending replacing
or interpreting such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented from time to time,
and (vi) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.



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



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



     1.03 Accounting Terms.



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



27









 







that used in preparing the Audited Financial Statements, except as otherwise
specifically prescribed herein.



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



     (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the determination of
any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be deemed to include each variable interest entity that the Borrower is
required to consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest
Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a
Subsidiary as defined herein.



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



     1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).



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



ARTICLE II.



THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans
(each such loan, a “Committed Loan”) to the Borrower from time to time, on any Business Day
during the Availability Period, in an aggregate amount not to exceed, at any time, the lesser of
(a) the outstanding amount of such Lender’s Commitment, and (b) such Lender’s Applicable Percentage
of the Borrowing Base; provided, however, that after giving effect to any
Borrowing, (i) the Total Outstandings shall not exceed the lesser of (A) the Aggregate Commitments
and (B) the Borrowing Base, and (ii) the aggregate Outstanding Amount of the Committed Loans of any
Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans, shall not exceed the lesser of (A) such Lender’s Commitment, and (B) such
Lender’s Applicable Percentage of the Borrowing Base. Within the limits of each Lender’s
Commitment, and subject to the other terms and conditions hereof, the



28









 







Borrower may borrow under
this Section 2.01, prepay under Section 2.05, and reborrow under this Section
2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided
herein.



     2.02 Borrowings, Conversions and Continuations of Committed Loans.



     (a) Each Borrowing, each conversion of Committed Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Committed Loans, and (ii) one Business Day prior to the
requested date of any Borrowing of Base Rate Committed Loans. Each telephonic notice by the
Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans
shall be in a principal amount of $5,000,000, or a whole multiple of $1,000,000 in excess thereof.
Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or
conversion to Base Rate Committed Loans shall be in a principal amount of $500,000, or a whole
multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall
specify (A) whether the Borrower is requesting a Borrowing, a conversion of Committed Loans from
one Type to the other, or a continuation of Eurodollar Rate Loans, (B) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (C) the
principal amount of Committed Loans to be borrowed, converted or continued, (D) the Type of Loans
to be borrowed or to which existing Committed Loans are to be converted, and (E) if applicable, the
duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of
Committed Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Committed Loans shall be made as, or converted to,
Base Rate Committed Loans. Any such automatic conversion to Base Rate Committed Loans shall be
effective as of the last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of
Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.



     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Applicable Percentage of the applicable Committed Loans, and if no
timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in
the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its
Committed Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall
make all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by
the Borrower; provided, however, that if, on the date the Loan Notice with respect
to such Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds
of such Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and second, shall be made available to the Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence



29









 







of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders.



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



     (e) After giving effect to all Borrowings, all conversions of Committed Loans from one Type to
the other, and all continuations of Committed Loans as the same Type, there shall not be more than
seven (7) Interest Periods in effect with respect to Committed Loans.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its
Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under the Letters of
Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for
the account of the Borrower or its Subsidiaries and any drawings thereunder;
provided, that after giving effect to any L/C Credit Extension with respect
to any Letter of Credit, (x) the Total Outstandings shall not exceed the lesser of (I) the
Aggregate Commitments and (II) the Borrowing Base, (y) the aggregate Outstanding Amount of
the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all Swing Line Loans, shall not exceed the lesser of (I) such
Lender’s Commitment and (II) such Lender’s Applicable Percentage of the Borrowing Base, and
(z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit
shall be deemed to be a representation by the Borrower that the L/C Credit Extension so
requested complies with the conditions set forth in the proviso to the preceding sentence.
Notwithstanding the foregoing, no L/C Issuer shall make any L/C Credit Extension with
respect to any Letter of Credit, and no Lender shall be obligated to participate in, any
Letter of Credit if as of the date of such L/C Credit Extension, the Administrative Agent
shall not have received a copy of the Letter of Credit
Application for such L/C Credit Extension and such L/C Issuer shall not have obtained
confirmation from the Administrative Agent that such L/C Credit Extension is permitted
hereunder. Within the foregoing limits, and subject to the terms and conditions hereof, the
Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of
Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters
of Credit shall be deemed to have been issued pursuant hereto, and from and after the
Closing Date shall be subject to and governed by the terms and conditions hereof.




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




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



30









 






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




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




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




     (B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer;




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




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




     (E) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower or such Lender
to eliminate the L/C Issuer’s risk with respect to such Lender.




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




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




     (vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent”
as used in Article IX included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C Issuer.



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



31









 






     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; and (G)
the purpose and nature of the requested Letter of Credit; and (H) such other matters as the
L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter
of Credit, such Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment
thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4)
such other matters as the L/C Issuer may require. Additionally, the Borrower shall furnish
to the L/C Issuer and the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may require.




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




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided, that any such Auto-Extension Letter of Credit must permit the L/C
Issuer to prevent any such extension at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each
such twelve-month period to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of
Credit has been issued, the Lenders shall be deemed to have authorized (but may not require)
the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry



32









 







date not later than the Letter of Credit Expiration Date; provided, however,
that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined
that it would not be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the
provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise),
or (B) it has received notice (which may be by telephone or in writing) on or before the day
that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative
Agent that the Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied, and in each such case
directing the L/C Issuer not to permit such extension.




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



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower
agrees to reimburse the L/C Issuer through the Administrative Agent in an amount equal to
the amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such
time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of
such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to
have requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount
of the unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Loan Notice). Any notice given by the
L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be
given by telephone if immediately confirmed in writing; provided, that the
lack of such an immediate confirmation shall not affect the conclusiveness or binding effect
of such notice.




     (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer at the
Administrative
Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base Rate Committed
Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so
received to the L/C Issuer.




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



33









 







participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.




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




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




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the L/C Issuer in connection with the foregoing. A certificate
of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to
any amounts owing under this clause (vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations.




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




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect. The obligations of



34









 







the Lenders under this clause
shall survive the payment in full of the Obligations and the termination of this Agreement.



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




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




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




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




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




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



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



     (f) Role of L/C Issuer. Each Lender and the Borrower agrees that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any



35









 







Letter of Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful
misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or information to
the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, (ii) if, after giving effect to any mandatory prepayment pursuant
to Section 2.14(c), the Outstanding Amount of all L/C Obligations exceeds the Borrowing
Base, or (iii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower agrees that in each case, the Borrower shall immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05 and
8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.05 and Section 8.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in form and substance satisfactory to
the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the
Lenders). Derivatives of such term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all
such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.



     (h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing
Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.



     (i) Letter of Credit Fees. The Borrower agrees to pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate times the
daily amount available to be drawn under such Letter of Credit. For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i)
computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day after
the end of each March, June, September and December, commencing with the first such date to occur
after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand. If there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, upon the request of the



36









 







Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower agrees to pay directly to the L/C Issuer for its own account a fronting fee with respect
to each Letter of Credit, at the rate per annum specified in the Fee Letter (or otherwise agreed
between the Borrower and the L/C Issuer), computed on the daily amount available to be drawn under
such Letter of Credit on a quarterly basis in arrears, and due and payable on the tenth Business
Day after the end of each March, June, September and December in respect of the most recently ended
quarterly period (or portion thereof, in the case of the first payment), commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. In addition, the Borrower agrees to pay directly to the L/C Issuer for
its own account the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to
time in effect. Such customary fees and standard costs and charges are due and payable on demand
and are nonrefundable.



     (k) L/C Issuer Reporting Requirements. Each L/C Issuer shall, no later than the last
Business Day of each month, provide to the Administrative Agent a schedule of the Letters of Credit
issued by such L/C Issuer, such schedule to be in form and substance reasonably satisfactory to the
Administrative Agent, showing the date of issuance of each Letter of Credit, the account party, the
original face amount (if any), the expiration date, and the reference number of any Letter of
Credit outstanding at any time during such month, and showing the aggregate amount (if any) payable
by the Borrower to such L/C Issuer during such month pursuant to Section 2.03(j).



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



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



     2.04 Swing Line Loans.



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



37









 







foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan.
Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation
in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage
times the amount of such Swing Line Loan.



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first
proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the terms and
conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Borrower at its office by crediting the account of the Borrower on the books of the Swing Line
Lender in immediately available funds.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
and if the Swing Line Lender has not done so within 10 days after the making of a Swing Line
Loan, the Administrative Agent shall request, on behalf of the Borrower (which hereby
irrevocably authorize the Swing Line Lender and the Administrative Agent to so request on
its behalf), that each Lender make a Base Rate Committed Loan in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Loan Notice
for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal amount of
Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02. The Swing Line Lender or the Administrative
Agent, as applicable, shall furnish the Borrower with a copy of the applicable Loan Notice
promptly after delivering such notice to the Administrative Agent. Each Lender shall make
an amount equal to its Applicable Percentage of the amount specified in such Loan Notice
available to the Administrative Agent in same day funds for the account of the Swing Line
Lender at the Administrative Agent’s Office for payments not later than 1:00 p.m. on the day
specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each
Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan
to the Borrower in such amount. The Administrative Agent shall remit the funds so received
to the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Borrowing in
accordance with Section 2.04(c)(i), the request for Base Rate Committed Loans
submitted by



38









 







the Swing Line Lender or the Administrative Agent as set forth herein shall be
deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender’s payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to Section
2.04(c)(i) shall be deemed payment in respect of such participation.




     (iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the applicable
Federal Funds Rate from time to time in effect, plus any administrative, processing or
similar fees customarily charged by the Swing Line Lender in connection with the foregoing.
A certificate of the Swing Line Lender submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be conclusive
absent manifest error.




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



     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage of such
payment (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s risk participation was funded) in the same funds
as those received by the Swing Line Lender.




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



     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to
refinance such Lender’s Applicable



39









 







Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.



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



     2.05 Prepayments.



     (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Committed Loans in whole or in part without premium or penalty;
provided, that (i) such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000, or a whole multiple of
$1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Committed Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid and, if
Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative
Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of
such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower,
the Borrower shall make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be
accompanied by all accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section 3.05. Each such prepayment shall be applied to the Committed
Loans of the Lenders in accordance with their respective Applicable Percentages.



     (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided, that (i) such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the
prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each
such notice shall specify the date and amount of such prepayment. If such notice is given by the
Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and payable on
the date specified therein.



     (c) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then
in effect, the Borrower agrees to immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however, that
the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05(b) unless after the prepayment in full of the Loans the Total Outstandings
exceed the Aggregate Commitments then in effect.



     (d) If for any reason the Total Outstandings at any time exceed the Borrowing Base then in
effect, the Borrower agrees to immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in accordance with Section 2.14(c) hereof.



     2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the Administrative
Agent, terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate
Commitments; provided, that (a) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination
or reduction, (b) any such partial reduction shall be in an aggregate amount of $10,000,000, or any
whole multiple of $1,000,000 in excess thereof, (c) the Borrower shall not terminate or reduce the
Aggregate Commitments




40









 




if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the
Aggregate Commitments, and (d) if, after giving effect to any reduction of the Aggregate
Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Commitments, such sublimit shall be automatically reduced by the amount of such excess.
The Administrative Agent will promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be
applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued
until the effective date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.




     2.07 Repayment of Loans.



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



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



     2.08 Interest.



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



     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.



          (ii) If any amount (other than principal of any Loan) payable by the Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




          (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.




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




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



41









 





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



     (a) Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the
Applicable Rate times the actual daily amount by which the Aggregate Commitments exceed the
sum of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article IV is not met,
and shall be due and payable quarterly in arrears on the last Business Day of each fiscal quarter
of the Borrower, commencing with the first such date to occur after the Closing Date, and on the
last day of the Availability Period. The commitment fee shall be calculated quarterly in arrears,
and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.



     (b) Other Fees.




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




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



     2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.



     (a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank
of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of fees and interest shall be made on
the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided, that any
Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day. Each determination by the Administrative Agent of an interest rate or
fee hereunder shall be conclusive and binding for all purposes, absent manifest error.



     (b) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the
Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate
and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher
pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to
the Administrative Agent for the account of the Lenders, promptly on demand by the Administrative
Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to
the Borrower under the Bankruptcy Code of the United States, automatically and without further
action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of
the amount of interest and fees that should have been paid for such period over the amount of
interest and fees actually paid for such period. This paragraph shall not limit the rights of the
Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section
2.03(c)(iii), 2.03(i) or 2.08(b) or under Article VIII. The Borrower’s
obligations under this paragraph shall survive the termination of the Aggregate Commitments and the
repayment of all other Obligations hereunder.



42









 





     2.11 Evidence of Debt.



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



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



     2.12 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share
of such Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.02 and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent, then
the Borrower and the applicable Lender severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in immediately available funds with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by



43









 







the Borrower, the interest rate
applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so
paid shall constitute such Lender’s Committed Loan included in such Borrowing. Any payment by the
Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall
have failed to make such payment to the Administrative Agent.




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in immediately available funds with interest thereon, for each day from and
including the date such
amount is distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.



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



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



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



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



     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Committed Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Committed Loans or participations
and accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent
of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and
subparticipations in L/C Obligations or Swing Line Loans of the other Lenders, or make such other
adjustments as shall be



44









 







equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Committed Loans and other amounts owing them, provided, that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).



     Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.



     2.14 Borrowing Base Determinations; Mandatory Prepayments of Loans.



     (a) Borrowing Base Determination. The Borrowing Base shall be determined (i) monthly
on the last Business Day of every month at all times during which Availability equals or exceeds
fifteen percent (15%) of the Aggregate Commitments in effect at such time, and (ii) weekly on the
last Business Day of each week at all times during which Availability is less than fifteen percent
(15%) of the Aggregate Commitments in effect at such time, in either case by reference to the
Borrowing Base Report delivered by the Borrower to the Administrative Agent pursuant to Section
6.02(g). The Borrowing Base shall be subject to adjustment based upon the results of a field
audit pursuant to Section 6.10(b). The Borrowing Base shall be equal to the sum of (A) 95%
of Eligible U.S. Government Accounts Receivable; plus (B) 90% of Eligible Accounts
Receivable (other than Eligible U.S. Government Accounts Receivable) from Preferred Eligible
Account Obligors; plus (C) 85% of Eligible Accounts Receivable (other than Eligible U.S.
Government Accounts Receivable) from Eligible Account Obligors other than Preferred Eligible
Account Obligors; plus (D) 80% of Eligible Refinery Hydrocarbon Inventory (except for (1)
Eligible Refinery Hydrocarbon Inventory at the Borrower’s and its Subsidiaries’ service stations
and cardlocks, and (2) Statoil Commingled Inventories), plus (E) 50% of Eligible Refinery
Hydrocarbon Inventory at the Borrower’s and the Guarantors’ service stations and cardlocks;
plus (F) 60% of the Lenders’ pro rata share of the Statoil Commingled Inventories;
plus (G) 50% of the Eligible Lubricants Inventory; plus (H) 80% of Eligible
In-Transit Crude Oil; plus (I) at the option of the Borrower, 100% of Eligible Cash;
minus (J) 100% of First Purchase Crude Payables; provided, however, that
until the Subordinated Debt Prepayment Date, the dollar amount of that portion of the Borrowing
Base that is attributable at any time to the Giant Companies shall not exceed an amount equal to
the lesser of $100,000,000 or the principal amount outstanding under the Giant Company Note.



     (b) Additional Limitations. Notwithstanding the foregoing, the dollar amount of the
Borrowing Base comprised of (i) Eligible Refinery Hydrocarbon Inventory set forth in clause
(a)(D) above and (ii) Eligible In-Transit Crude Oil set forth in clause (a)(H) above
shall not, in the aggregate, exceed 60% of the Borrowing Base. For purposes of clarity, it is
understood that the term “Borrowing Base” as used in the preceding sentence means the
Borrowing Base as calculated pursuant to Section 2.14(a), even if the Borrowing Base as so
calculated is greater than the Aggregate Commitments (provided, that, it is hereby
noted that nothing in this Section 2.14(b) is intended to alter Section 2.01,



45









 







which
provides that the Outstanding Amount of outstanding Loans plus the Outstanding Amount of L/C
Obligations may never exceed the current Borrowing Base).



     (c) Mandatory Prepayments if Total Outstandings exceed the Borrowing Base. If, on any
date, the Total Outstandings exceed the Borrowing Base, the Borrower agrees, without notice or
demand, to prepay the outstanding principal amount of the Committed Loans by an amount equal to the
applicable excess. If on any date, after giving effect to any mandatory prepayment made on such
date pursuant to the preceding sentence, the Outstanding Amount of all L/C Obligations exceed the
Borrowing Base, the Borrower agrees to immediately Cash Collateralize the outstanding Letters of
Credit on such date in an amount equal to the amount by which such Outstanding Amount of the L/C
Obligations exceeds the Borrowing Base.



     (d) Mandatory Prepayments with Proceeds of Payments on Giant Company Note. If a
payment of principal is made by a Giant Company on a Giant Company Loan, the Borrower shall prepay
an aggregate principal amount of Loans equal to such prepayments immediately upon receipt
thereof. The Borrower hereby irrevocably directs Giant to make all such payments directly to the
Administrative Agent unless otherwise directed by the Administrative Agent, and the Borrower
directs the Administrative Agent to apply such funds to prepayment of Loans and to pay any excess
to the Borrower.



     (e) Borrowing Base Determination and Mandatory Prepayments upon Disposition of Borrowing
Base Assets. In the event of a Disposition of Borrowing Base Assets permitted by Section
7.05(a)(viii), if the amount of Net Cash Proceeds of such Disposition, when added to the Net
Cash Proceeds of all other such Dispositions of Borrowing Base Assets received by the Borrower and
its Subsidiaries after the Closing Date during any calendar year, exceed $30,000,000, then at the
time of receipt of such Net Cash Proceeds of such Disposition the Borrower shall deliver to the
Administrative Agent a Borrowing Base Report prepared taking into account such Disposition and
shall make such mandatory prepayments as may be required by Section 2.14(c) (and, if
required by such Section, provide Cash Collateral as therein set forth).



     (f) Miscellaneous. No corresponding reduction in the Commitments shall be required by
reason of prepayments pursuant to this Section 2.14.



     2.15 Security. All Obligations of the Borrower and the Guarantors shall be secured in accordance with the
Collateral Documents.



     2.16 Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may request an
increase in the Aggregate Commitments by an amount (for all such requests) which, when taken
together with all increases in the “Aggregate Commitments” pursuant to Section 2.13 of the Term
Loan Credit Agreement, shall not exceed $300,000,000; provided, that (i) any such
request for an increase shall be in a minimum amount of $75,000,000, and (ii) the maximum aggregate
number of such requests that the Borrower may make under this Section and under Section 2.13 of the
Term Loan Credit Agreement is four. At the time of sending such notice, the Borrower (in
consultation with the Administrative Agent) shall specify the time period within which each Lender
is requested to respond.



     (b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Commitment and, if so, the amount
of the increase to which it agrees. Any Lender not responding within such time period shall be
deemed to have declined to increase its Commitment.



46









 





     (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder. Subject to the approval of the Administrative Agent, the L/C Issuer and the Swing Line
Lender (which approvals shall not be unreasonably withheld), the Borrower may also invite
additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.



     (d) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Increase Effective Date”), which shall be no earlier than the
Subordinated Debt Prepayment
Date, and the final allocation of such increase. The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase and the Increase
Effective Date.



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Increase Effective Date signed by a Responsible Officer of such Loan Party (i)
certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such
increase, and (ii) in the case of the Borrower, certifying that, before and after giving effect to
such increase, (A) the representations and warranties contained in Article V and the other
Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent
that such representations and warranties specifically refer to an earlier date, in which case they
are true and correct as of such earlier date, and except that for purposes of this Section
2.16, the representations and warranties contained in subsections (a) and (b)
of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant
to clauses (a) and (b), respectively, of Section 6.01, and (B) no Default
exists. The Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date
(and pay any additional amounts required pursuant to Section 3.05) to the extent necessary
to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising
from any nonratable increase in the Commitments under this Section.



     (f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.13 or 10.01 to the contrary.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes, provided,
that if the Borrower shall be required by applicable law to deduct any Indemnified Taxes
(including any Other Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or L/C Issuer, as the
case may be, receives an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall timely pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.



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



47









 





     (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and the L/C Issuer, within 10 days after demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Borrower
by a Lender or the L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the L/C Issuer, shall be conclusive absent manifest error.



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



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.



     Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




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




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




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




     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.



48









 





     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer, as
the case may be, and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such refund),
provided, that the Borrower, upon the request of the Administrative Agent, such
Lender or the L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C
Issuer is required to repay such refund to such Governmental Authority. This subsection shall not
be construed to require the Administrative Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar
Rate, 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 the Borrower through the Administrative Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Committed Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrower, agree, upon demand from such Lender (with a copy to the
Administrative Agent), to prepay or, if applicable, convert all Eurodollar Rate 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 Eurodollar Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment
or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.



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



     3.04 Increased Costs; Reserves on Eurodollar Rate Loans.



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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account



49









 







of, or credit extended or participated in by, any Lender (except any reserve
requirement reflected in the Eurodollar Rate) or the L/C Issuer;




     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer); or




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


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




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



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



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



50









 







is retroactive, then the nine-month period referred to above shall be extended to include the
period of retroactive effect thereof).



     (e) Reserves on Eurodollar Rate Loans. The Borrower agrees to pay to each Lender, as
long as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the Borrower shall have received
at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional
interest from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest
Payment Date, such additional interest shall be due and payable 10 days from receipt of such
notice.



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



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



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



     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.13;


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



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




     3.06 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder 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 (i) would eliminate or reduce amounts payable pursuant to
Sections 3.01 or 3.04, as the case may be, in the future, or eliminate the need for
the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all



51









 







reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01 the Borrower
may replace such Lender in accordance with Section 10.13.



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



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions to Initial Credit Extension Hereunder. The effectiveness of this Agreement, and the obligation of the L/C Issuer and each Lender to
make its initial Credit Extension hereunder, are subject to satisfaction of the following
conditions precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, and in the case of
documents delivered by the Borrower, each properly executed by a Responsible Officer of the
Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a
recent date before the Closing Date) and each in form and substance satisfactory to the
Administrative Agent and each of the Lenders:




     (i) executed counterparts of this Agreement;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note;




     (iii) the Collateral Documents, executed by the Loan Parties party thereto in
appropriate form for recording, where necessary, granting first priority Liens in the
Collateral owned by the Borrower and its Subsidiaries which constitutes Revolver Priority
Collateral, and granting second priority Liens in the Collateral owned by the Borrower and
the Western Subsidiaries which constitutes Term Priority Collateral, together with:




     (A) such Lien searches as the Administrative Agent shall have requested,
and such termination statements or other documents as may be necessary to
confirm that the Collateral is subject to no Liens in favor of any Persons
(other than the Liens securing the Obligations and the Liens permitted by
Section 7.01);




     (B) such consents, estoppels, subordination agreements and other documents
and instruments executed by landlords and other Persons party to material
contracts relating to any Collateral as to which the Administrative Agent shall
be granted a Lien for the benefit of the Lender Secured Parties, as requested by
the Administrative Agent or the Required Lenders; and




     (C) evidence that all other actions necessary or, in the opinion of the
Administrative Agent or the Lenders, desirable to perfect and protect such Liens and
the Administrative Agent’s ability to preserve and protect its interests in and
access to the Collateral, have been taken; and




     (iv) the Intercreditor Agreement executed by each of the parties thereto;



52









 






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




     (vi) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed;




     (vii) a favorable opinion of Andrews Kurth LLP, counsel to the Loan Parties, addressed
to the Administrative Agent and each Lender, covering the matters set forth in Exhibit
E attached hereto, and (ii) such local counsel opinions relating to the Loan Parties and
real estate Collateral as the Administrative Agent may reasonably request;




     (viii) a certificate of a Responsible Officer of the Borrower as to the matters set
forth below in this clause (viii) (provided that the certificate delivered with respect to
the matters set forth in clauses (A), (B), and (C) below shall be executed by the chief
financial officer of the Borrower):




     (A) certifying as to the Solvency of the Borrower and its Subsidiaries taken as
a whole before and after giving effect to the Merger and the incurrence on the
Closing Date of Indebtedness hereunder and under the Term Loan Credit Agreement;




     (B) attaching the following and certifying that they have been prepared in good
faith based upon reasonable assumptions: (1) a pro forma balance sheet of the
Borrower and its Subsidiaries as of the end of the most recent fiscal quarter for
which financial statements have been filed with the SEC, giving pro forma effect to
the Merger, and (2) five-year financial projections for the Borrower and its
Subsidiaries, including balance sheet and statements of income and cash flow;




     (C) attaching calculations demonstrating pro forma compliance with Section
7.11, giving effect to the Merger, as of the end of the most recent fiscal
quarter of the Borrower for which financial statements have been filed with the SEC;




     (D) attaching a Borrowing Base Certificate;




     (E) certifying that the representations and warranties of the Borrower and the
other Loan Parties contained in Article V or in any other Loan Document are
true and correct as of the Closing Date, both before and after giving effect to the
Merger, except as disclosed in such certificate (provided however that such
exceptions shall not include the representations and warranties specifically
referred in the last sentence of Section 4.02(a)); and




     (F) certifying that both before and after giving effect to the Merger no
Default shall have occurred and be continuing (other than any Default arising from
the
breach of a representation or warranty that is not specifically referenced in
the last sentence of Section 4.02(a));




     (ix) a certificate of Responsible Officer of the Borrower:




     (A) certifying that the Merger has been, or substantially concurrently with
delivery of such certificate is being, consummated on the Closing Date in compliance



53









 







with applicable Laws for a cash purchase price not exceeding $77.00 per share, and
has been consummated or is being consummated without waiver of the conditions
precedent set forth in the Merger Agreement as to the absence of any Giant
Catastrophic Material Adverse Effect;




     (B) certifying that all shareholder approvals necessary in connection with the
execution, delivery and performance by the Loan Parties of the Loan Documents and in
connection with the Merger shall have been received and shall be in full force and
effect, and the applicable waiting periods under the Hart-Scott-Rodino Act shall
have been terminated or shall have expired without any materially adverse action
being taken by any applicable Governmental Authority; and




     (C) certifying that attached thereto is a true and correct copy of the
certificate of merger with respect to the Merger and that such certificate has been,
or concurrently with the making of the Loans on the Closing Date is being, filed
with the applicable filing office, and that upon such filing the Merger became, or
shall become, effective on the Closing Date in accordance with the terms of the
Merger Agreement and applicable Laws; and




     (D) certifying as to the accuracy of the matters set forth in
subsections, (e), (f) and (g) of this Section
4.01;



     (b) the Administrative Agent’s receipt of the following:




     (i) an environmental assessment report;




     (ii) (A) a survey of each Refinery, (B) a mortgagee title insurance policy (with
customary endorsements) covering the El Paso Refinery, and (C) commitments for mortgagee
title insurance policies (with customary endorsements) covering the Ciniza Refinery, the
Bloomfield Refinery and the Yorktown Refinery;




     (iii) a field examination of accounts receivable and inventory of the Borrower and its
Subsidiaries and of the Giant Companies, dated not more than twelve (12) months prior to the
Closing Date;




     (iv) a report from Purvin & Gertz providing an operational and financial assessment of
the Refineries; and




     (v) a certificate of the Borrower confirming that (A) insurance complying with the
requirements of this Agreement is in effect and (B) there are no past due premiums in
respect of any such insurance, and (C) stating that attached thereto are certificates of
insurance evidencing same.



     (c) the commitments to lend under the Existing Western Credit Agreement have been, or
concurrently with the Closing Date are being, terminated and all Liens securing obligations under
the
Existing Western Credit Agreement have been, or concurrently with the Closing Date are being
terminated, and (B) the commitments to lend under the Existing Giant Credit Agreement have been, or
concurrently with the Closing Date are being, terminated and all Liens securing obligations under
the Existing Giant Credit Agreement have been, or concurrently with the Closing Date are being,
terminated;



     (d) the Borrower shall have received, or concurrently with the effectiveness of this Agreement
shall receive, proceeds of the initial borrowing under the Term Loan Credit Agreement;



54









 





     (e) (i) no order, decree, judgment, ruling or injunction of a court of competent jurisdiction,
domestic or foreign, shall exist which restrains the consummation of the Merger or the transactions
contemplated by this Agreement, and (ii) no statute, rule or regulation shall have been enacted by
any Governmental Authority which prohibits or makes unlawful the consummation of the Merger or
transactions contemplated by this Agreement;



     (f) there shall be no actions, suits or proceedings pending or threatened against Giant or any
of its Subsidiaries, at law or in equity, or before or by any Governmental Authority, other than
those that have not had and would not reasonably be expected to have a Giant Catastrophic Material
Adverse Effect, and there shall be no outstanding judgments, decrees, injunctions, awards or orders
of any Governmental Authority against Giant or any of its Subsidiaries, other than those that have
not had and would not reasonably be expected to have a Giant Catastrophic Material Adverse Effect;



     (g) the conditions precedent set forth in Section 4.02 shall have been satisfied;



     (h) the Closing Date shall have occurred on or before May 31, 2007;



     (i) any fees required to be paid on or before the Closing Date shall have been paid; and



     (j) unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of such fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided, that such estimate shall
not thereafter preclude a final settling of accounts between the Borrower and the Administrative
Agent).



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



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



     (a) The representations and warranties of the Borrower and each other Loan Party contained in
Article V or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct on and as of the
date of such Credit Extension, before and after giving effect to such Credit Extension, except to
the extent that such representations and warranties specifically refer to an earlier date, in which
case they shall be true and
correct as of such earlier date, and except that for purposes of this Section 4.02,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01. Notwithstanding the
foregoing, the requirement that such representations and warranties be true and correct shall be a
condition precedent to the initial Credit Extension hereunder only in the case of the
representations and warranties set forth in (i) the Merger Agreement, the breach of which would
result in the Borrower having the right to terminate its obligations under the Merger Agreement,
and (ii) Sections 5.01, 5.02, 5.03, 5.04, 5.05 (other than
Section 5.05(c)), 5.10, 5.11 (other than references to tax assessments),
5.13, 5.14, 5.15, 5.16, and 5.19(a).



55









 





     (b) No Default shall exist or would result from such proposed Credit Extension, or from the
application of the proceeds thereof, provided, however, that with respect to the
initial Credit Extension hereunder, any Default arising from the breach of any representation or
warranty shall not constitute a failure of this condition precedent unless it constitutes a breach
of a representation and warranty described in the last sentence of Section 4.02(a).



     (c) Both before and after giving effect to such Credit Extension, Total Outstandings shall not
exceed the lesser of (i) the Aggregate Commitments and (ii) the Borrowing Base.



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


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




ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that both
before and after giving effect to the Merger:



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



     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party have been duly authorized by all necessary corporate or other organizational
action, and do not and will not (a) contravene the terms of such Person’s Organization Documents;
(b) conflict with or result in any breach or contravention of, or the creation of any Lien under,
or require any payment to be made under (i) any Contractual Obligation to which such Person is a
party or affecting such Person, or the
properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree
of any Governmental Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law. Each Loan Party and each Subsidiary thereof is in compliance with
all Contractual Obligations referred to in clause (b)(i), except to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect.



     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization or other action by, or notice to or filing with,
any Governmental Authority or any other Person is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or
any other Loan Document.



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



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This Agreement constitutes,
and each other Loan Document when so delivered will constitute, the legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is party thereto in
accordance with its terms.



     5.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements and the Giant Audited Financial Statements (i) were
prepared in accordance with GAAP consistently applied throughout the period covered thereby, except
as otherwise expressly noted therein; (ii) fairly present the financial condition of the Borrower
and the Western Subsidiaries or Giant and its Subsidiaries, as applicable, as of the dates thereof
and their results of operations for the periods covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of
the Borrower and the Western Subsidiaries or Giant and its Subsidiaries, as applicable, as of the
dates thereof, including liabilities for taxes, material commitments and Indebtedness.



     (b) The following representation and warranty shall be deemed made by the Borrower at the time
it delivers financial statements pursuant to Section 6.01(b) for the quarter ended
September 30, 2007: the unaudited consolidated balance sheet of the Borrower and its Subsidiaries
dated September 30, 2007, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarters ended on such date (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present the financial condition of the Borrower
and its Subsidiaries as of the date thereof and their results of operations for the periods covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes
and to normal year-end audit adjustments.



     (c) Since the dates of the Audited Financial Statements and the Giant Audited Financial
Statements, there has been no event or circumstance, either individually or in the aggregate, that
has had or could reasonably be expected to have a Material Adverse Effect.



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



     5.07 No Default. No Default exists or would be reasonably expected to result from the incurring of any
Obligations by the Borrower or from the grant or perfection of the Liens of the Administrative
Agent and the Lenders on the Collateral. Neither of the Borrower nor any of its Subsidiaries is in
default under or with respect to any Contractual Obligation that could, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred
and is continuing or would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.



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



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     5.09 Environmental Compliance. The Borrower and its Subsidiaries conduct in the ordinary course of business a review of the
effect of existing Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations and properties, and
as a result thereof, the Borrower has reasonably concluded that such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.



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



     5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other material tax returns
and reports required to be filed, and have paid all Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Borrower or any Subsidiary
that would, if made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary
thereof is party to any tax sharing agreement.



     5.12 ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of,
such qualification. The Borrower and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has been made with respect
to any Plan.



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



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability in excess of the Threshold Amount; (iii) neither of the Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV
of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (iv) neither of the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; and (v) neither of the Borrower nor any ERISA Affiliate has
engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.



     5.13 Subsidiaries; Equity Interests. As of the Closing Date after giving effect to the Merger, the Borrower has no Subsidiaries other
than those specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding
Equity Interests in such Subsidiaries have been validly issued, are fully paid and



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nonassessable
and are owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13 free
and clear of all Liens except those created under the Collateral Documents and the Term Collateral
Documents. The Borrower has no equity investments in any other corporation or entity other than
those specifically disclosed in Part (b) of Schedule 5.13.



     5.14 Margin Regulations; Investment Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing, Swing Line Borrowing or
drawing under each Letter of Credit, not more than 25% of the value of the assets (either of the
Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the
provisions of Section 7.01 or Section 7.05 or subject to any restriction contained
in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender
relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock.



     (b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of
1940.



     5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No report, financial statement, certificate or
other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each
case, as modified or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided,
that, with respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to be reasonable at the
time.



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



     5.17 Intellectual Property; Licenses, etc. The Borrower and its Subsidiaries own, or possess the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other
intellectual property rights that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person. To the best knowledge of the
Borrower, no slogan or other advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by the Borrower or any Subsidiary
infringes upon any rights held by any other Person. No claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Borrower, threatened, which, either
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.



     5.18 Solvency. Each Loan Party is, individually and together with its Subsidiaries on a consolidated basis,
Solvent.



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     5.19 Collateral Documents.



     (a) The provisions of each of the Collateral Documents are effective to create in favor of the
Administrative Agent, for the benefit of the Lender Secured Parties, a legal, valid and enforceable
(i) first priority security interest in all right, title and interest of the Loan Parties in the
Revolver Priority Collateral described therein, and (ii) second priority security interest (subject
only to the Term Priority Liens) in all right, title and interest of the Loan Parties in the Term
Priority Collateral described therein, in each case, subject to the terms and provisions of the
Intercreditor Agreement. Financing statements have been filed in the offices in all of the
jurisdictions listed in the schedules to each Security Agreement executed by a Loan Party.



     (b) All representations and warranties of the Loan Parties contained in the Collateral
Documents are true and correct in all material respects.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01,
6.02, and 6.03) cause each Subsidiary to:



     6.01 Financial Statements. Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent
and the Required Lenders:



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such fiscal year, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, such consolidated statements to be audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing reasonably acceptable to
the Required Lenders, which report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit; and



     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal quarter, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and
for the portion of the Borrower’s fiscal year then ended, setting forth in each case in comparative
form the figures for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail, such consolidated
statements to be certified by a Responsible Officer of the Borrower as fairly presenting the
financial condition, results of operations, shareholders’ equity and cash flows of the Borrower and
its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.



     As to any information contained in materials furnished pursuant to Section 6.02(d),
the Borrower shall not be separately required to furnish such information under clause (a)
or (b) above, but the foregoing shall not be in derogation of the obligation of the
Borrower to furnish the information and materials described in clauses (a) and (b) above at the
times specified therein.



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     6.02 Certificates; Field Audits; Other Information. Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent
and the Required Lenders:



     (a) concurrently with the delivery of the financial statements referred to in Section
6.01(a), a certificate of its independent certified public accountants certifying such
financial statements;



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



     (c) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of directors
or audit committee of the board of directors (or comparable board or committee) of any Loan Party
by independent accountants in connection with the accounts or books of such Loan Party, or any
audit of any of them;



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



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



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



     (g) a Borrowing Base Report certified by a Responsible Officer of the Borrower as fairly
presenting the Eligible Refinery Hydrocarbon Inventory, Eligible Accounts Receivable, Statoil
Commingled Inventories, Eligible Lubricants Inventory and Eligible In-Transit Crude Oil (and, if
applicable, Eligible Cash) as of the last Business Day of the relevant month, and, if requested by
the Administrative Agent or any Lender, a listing and aging of Eligible Accounts Receivable by
counterparty, and a schedule of inventory volumes and market rates (with sources);
provided, that if Availability is less than fifteen percent (15%) of the Aggregate
Commitments then in effect, the Borrower shall deliver such report and information weekly, in each
case as set forth in clauses (A) or (B) below, as applicable:




     (A) Monthly Reporting. The Borrower shall deliver a Borrowing Base
Report monthly, unless clause (B) below applies. Each monthly Borrowing
Base Report shall be prepared as of the last day of a calendar month and shall be
delivered not later than 21 days after the end of the applicable month; and




     (B) Weekly Reporting. If during any month Availability is less than
fifteen percent (15%) of the Aggregate Commitments then in effect for a period of
three consecutive Business Days (the third such Business Day being herein referred
to as the “Third Consecutive Day”), then the Borrower shall be required to
deliver Borrowing Base Reports weekly. The first such Borrowing Base Report shall
be prepared as of



61









 







Friday of the week in which the Third Consecutive Day occurs, and
shall be delivered on Friday of the following week. The Borrower shall continue to
deliver weekly Borrowing Base Reports thereafter (each such Borrowing Base Report
shall cover a one-week period ending on a Friday and shall be delivered on the
following Friday), until Availability is equal to or greater than fifteen percent
(15%) of the Aggregate Commitments then in effect for an entire month;


provided, that if any day on which a Borrowing Base Report is required to be
delivered is not a Business Day, then the Borrowing Base Report otherwise required to be delivered
on such day shall instead be
delivered on the preceding Business Day, unless the Administrative Agent agrees to permit delivery
on the next succeeding Business Day;




     (h) on or before June 30 of each year, commencing June 30, 2007 and at any time at the request
of the Administrative Agent following an Event of Default, a field audit and inventory valuation
report prepared by Bank of America Business Credit, Inc., in form and substance satisfactory to the
Administrative Agent;



     (i) notice of the entry by the Borrower or any of its Subsidiaries into any Lender Swap
Contract (promptly after the Borrower enters into any such Lender Swap Contract), specifying the
identity of the Lender Swap Provider, the notional amount, the nature of the Lender Swap Contract
and such other information as the Administrative Agent reasonably may request;



     (j) notice of the occurrence of any default, event of default, termination event or other
event under any Lender Swap Contract that after the giving of notice, passage of time or both,
would permit either counterparty to such Lender Swap Contract to terminate early any or all trades
relating to such contract, and the liability, if any, of the Borrower or Subsidiary, as applicable,
in the event thereof;



     (k) notice of the entry by the Borrower or any of its Subsidiaries into any Cash Management
Agreement (promptly after the Borrower enters into any such Cash Management Agreement), specifying
the identity of the Cash Management Bank, the nature of the Cash Management Agreement and such
other information as the Administrative Agent reasonably may request;



     (l) concurrently with any notice provided to the Term Administrative Agent or the lenders
under the Term Loan Credit Agreement, of the occurrence of a Default as therein defined;



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



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provide a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent);
provided, that: (i) the Borrower shall deliver paper copies of such documents to
the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the Administrative Agent or
such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance the Borrower



62









 







shall be
required to provide paper copies of the Compliance Certificates required by Section 6.02(b)
to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by the Borrower with any
such request for delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such documents. In the event that the Borrower furnishes to the
Administrative Agent written notices or other documentation pursuant to this Section 6.02,
the Administrative Agent shall promptly furnish a copy thereof to each Lender pursuant to the
procedures for notices and communications set forth in Section 10.02.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive
material non-public information with respect to the Borrower or its Affiliates, or the respective
securities of any of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities. The Borrower hereby agrees that (i) all
Borrower Materials that are to be made available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (ii) by marking Borrower Materials “PUBLIC,” the Borrower
shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat the Borrower Materials as not containing any material non-public information with
respect to the Borrower or its securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent the Borrower Materials
constitute Information, they shall be treated as set forth in Section 10.07); (iii) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor;” and (iv) the Administrative Agent and the Arranger
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform not designated “Public Investor.”
Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower
Materials “PUBLIC.”



     6.03 Notices. Promptly notify the Administrative Agent and each Lender of:



     (a) the occurrence of any Default;



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



     (c) the (i) occurrence of any Disposition of property or assets for which the Borrower is
required to make a mandatory prepayment pursuant to the Term Loan Documents, (ii) incurrence or
issuance of any Indebtedness for which the Borrower is required to make a mandatory prepayment
pursuant to the Term Loan Documents, and (iii) receipt of any Extraordinary Receipt for which the
Borrower is required to make a mandatory prepayment pursuant to the Term Loan Documents;



     (d) the occurrence of any ERISA Event; and



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



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



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



     6.05 Preservation of Existence, etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing
under the Laws of the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its
business, except to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material properties and equipment necessary in the
operation of its business in good working order and condition, ordinary wear and tear excepted; (b)
make all necessary repairs thereto and renewals and replacements thereof except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the
standard of care typical in the industry in the operation and maintenance of its facilities.



     6.07 Maintenance of Insurance.



     (a) At all times, at its expense, cause to be carried and maintained with reputable insurers,
insurance (including property insurance, liability insurance, business interruption insurance, and
workers’ compensation insurance) of the kinds and in the amounts and with deductibles as are
customarily maintained by prudent companies in similar circumstances, carrying on similar
businesses or having comparable properties and reasonably acceptable to the Required Lenders.



     (b) All insurance required to be maintained by the Borrower shall comply with the following
general requirements: (i) all insurance shall be written by insurance companies that are rated in
A.M. Best’s Key Insurance Rating Guide or any successor thereto (or if there be none, an
organization having a similar national reputation) with a general policyholder rating of “A-” or
better and a financial rating of at least “VIII” or otherwise reasonably acceptable to the Required
Lenders; (ii) liability insurance, business interruption insurance and property insurance in
respect of the Collateral (other than workers’ compensation and employer’s liability insurance, and
other than insurance covering costs of compliance with the Agreed Order issued in 2000 by the Texas
Commission on Environmental Quality with respect to the El Paso refinery (the “Agreed Order
Coverage”) shall name the Administrative Agent (or, if required by the Intercreditor Agreement,
the Control Agent) and the Lenders as additional insureds and/or as mortgagee/loss payees, as their
respective interests may appear; (iii) with the exception of the Agreed Order Coverage, each policy
shall provide that (A) it will not be cancelled except after not less than 30 days’ (but 10 days if
for non-payment of premium) prior written notice to the Administrative Agent; (B) the interests of
the Administrative Agent and the Lenders shall not be invalidated or otherwise compromised by any
act or negligence of, or breach of representation or warranty by the Borrower or any



64









 







Person having
an interest in the Property and (C) such insurance is primary with respect to any other
insurance carried by or available to the Administrative Agent and/or any Lender; and (iv) with
the exception of the Agreed Order Coverage, insurers shall waive their rights of subrogation,
setoff, counterclaim, or other deduction, whether by attachment or otherwise, against the
Administrative Agent, the Control Agent and the Lenders and further the insurers shall waive any
right to claim any premiums or commission against the Administrative Agent, the Control Agent or
any Lender. Notwithstanding the foregoing, the following shall apply with respect to Collateral
owned by the Giant Companies that constitutes Term Priority Collateral: the Borrower shall not be
required to name the Administrative Agent or the Control Agent as mortgagee/loss payees, or grant
such Parties rights to notice, under insurance policies covering such property until the
Subordinated Debt Prepayment Date.



     (c) The Borrower will notify the Administrative Agent and the Lenders at least 10 days prior
to any policy cancellation, reduction in policy limits, modification or amendment or other material
change which would result in non-compliance with the requirements of this Section 6.07.



     (d) No provision of this Section 6.07 shall impose on the Administrative Agent, the
Control Agent or Lenders any duty or obligation to verify the existence or adequacy of the
insurance coverage maintained by the Borrower or other Loan Parties, nor shall the Administrative
Agent, the Control Agent or the Lenders be responsible for any representations or warranties made
by or on behalf of the Borrower to any insurance company or underwriter. Any failure on the part
of the Administrative Agent, the Control Agent or the Lenders to pursue or obtain the evidence of
insurance required by this Section 6.07 from the Borrower or other Loan Parties and/or
failure of the Administrative Agent or the Lenders to point out any non-compliance of such evidence
of insurance shall not constitute a waiver of any of the insurance requirements in this Section
6.07.



     (e) Prior to the expiration dates of expiring policies, the Borrower shall deliver to the
Administrative Agent evidence of insurance issued by the insurer(s) or their authorized
representatives evidencing insurance required to be maintained by the Borrower pursuant to this
Section 6.07, together with a certificate or other statement signed by an officer of the
Borrower, certifying on behalf of the Borrower that the Borrower maintains insurance as required by
this Section 6.07.



     (f) During the existence and continuation of an Event of Default, all insurance proceeds or
condemnation proceeds received by the Borrower, any Subsidiary, the Administrative Agent or the
Control Agent in respect of Revolver Priority Collateral shall, at the direction of the
Administrative Agent or the Required Lenders (i) be applied to repay the Obligations in the order
set forth in Section 8.03 or (ii) held in an account held by the Administrative Agent for
the benefit of the Lender Secured Parties (the “Revolver Casualty Proceeds
Account”). The Borrower hereby grants to the Administrative Agent for the benefit of the
Lender Secured Parties, a Lien in the Revolver Casualty Proceeds Account to secure the Obligations,
and shall execute such security agreements or control agreements as the Administrative Agent may
request in order to perfect such first priority Lien in the Revolver Casualty Proceeds Account.
The Administrative Agent may invest funds in the Revolver Casualty Proceeds Account in a deposit
account at Bank of America, N.A. (or such other institution as shall then be acting as
Administrative Agent) as depository bank or, at the option of the Administrative Agent, in Cash
Equivalents.



     (g) The Borrower, for itself and on behalf of each of its Subsidiaries, hereby irrevocably
makes, constitutes and appoints the Administrative Agent, during the existence and continuation of
a Default, as the Borrower’s and each Subsidiary’s true and lawful agent and attorney-in-fact for
the purpose of making, settling and adjusting claims under policies of “all risk” insurance with
respect to the Revolver Priority Collateral, and for endorsing the name of the Borrower and its
Subsidiaries on any check or other item of payment for the proceeds of such insurance.



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



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



     6.10 Inspection Rights; Field Audits.



     (a) Permit representatives and independent contractors of the Administrative Agent and each
Lender to visit and inspect any of its properties, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public accountants, all at the
expense of the Borrower and at such reasonable times during normal business hours and as often as
may be reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists, the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at
the expense of the Borrower at any time during normal business hours and without advance notice;
and



     (b) Obtain and deliver field audit and inventory valuations at the expense of the Borrower in
accordance with Section 6.02(h); and when an Event of Default exists hereunder, permit the
Administrative Agent or any authorized representative or agent thereof to conduct such field audit
and inventory valuation at the expense of the Borrower at any time during normal business hours and
without advance notice.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions to refinance existing Indebtedness of the Borrower and
its Subsidiaries, to repay Indebtedness of the Borrower and its Subsidiaries, including Term Loan
Indebtedness, for working capital and capital expenditures, and for other general corporate
purposes not in contravention of any Law or of any Loan Document.



     6.12 Guarantors; Additional Security Agreements.



     (a) Notify the Administrative Agent at the time that any Person becomes a Subsidiary, and
promptly thereafter (and in any event within 30 days), cause each such Subsidiary that is organized
under the laws of any state in the United States of America that (i) has total assets with a book
value of $5,000,000 or more or (ii) executes a guaranty agreement with respect to the Borrower’s
obligations under the Giant Subordinated Notes or the Borrower’s obligations under any other
Indebtedness for borrowed money, to (x) become a Guarantor by executing and delivering to the
Administrative Agent a Guaranty or such other document as the Administrative Agent shall deem
appropriate for such purpose, and (y) deliver to the Administrative Agent such documents of the
types referred to in Sections 4.01(a)(v) and 4.01(a)(vi) and such opinions of
counsel (including opinions as to the legality, validity, binding effect and enforceability of such
documentation) as the Administrative Agent requires, all in form, content and scope reasonably
satisfactory to the Administrative Agent.



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     (b) Cause each Person that becomes a Subsidiary after the date of this Agreement to (i)
execute and deliver to the Administrative Agent a Security Agreement, deeds of trust or mortgages
covering any real property on which a Lien is required pursuant to this Section 6.12, a
joinder agreement to the Intercreditor Agreement and such financing statements and other documents
and instruments related thereto as the Administrative Agent or the Required Lenders may require,
and (ii) deliver to the Administrative Agent such documents of the types referred to in
Sections 4.01(a)(v) and 4.01(a)(vi) and such opinions of counsel (including
opinions as to the legality, validity, binding effect and enforceability of such documentation) as
the Administrative Agent requires, all in form, content and scope reasonably satisfactory to the
Administrative Agent.



     (c) The Borrower will cause the Refineries, and all of the Borrower’s and its Subsidiaries’
other material real property and personal property (other than motor vehicles) and assets, to be
subject at all times to perfected Liens in favor of the Administrative Agent to secure the
Obligations pursuant to the terms and conditions of Collateral Documents as the Administrative
Agent shall reasonably request, subject in any case to Liens permitted under Section 7.01
and rights of lenders and agents under the Term Collateral Documents as provided in the
Intercreditor Agreement; provided, however, that for so long as no Default has
occurred and is existing, the Borrower and its Subsidiaries shall not be required to grant Liens on
(or perfect Liens on fixtures located at) real property consisting of Terminals, convenience
stores. retail sale locations or card locks, or on aircraft owned by the Borrower or its
Subsidiaries and used for company business. In the case of Collateral of the type described in the
definition of Revolver Priority Collateral, the Liens securing the Obligations shall be first
priority Liens, and in the case of Collateral of the type described in the definition of Term
Priority Collateral, the Liens securing the Obligations shall be second in priority to the Liens of
the lenders and agents under the Term Collateral Documents as provided in the Intercreditor
Agreement.



     With respect to real property other than real property used for operation of the Refineries,
the Borrower may propose that real property be deemed not material for purposes of this Section
6.12, and such proposal shall be subject to the disapproval of Administrative Agent or the
Required Lenders.



     (d) In furtherance of the foregoing provisions of this Section 6.12, in connection
with property that becomes property owned by the Borrower or any Subsidiary after the Closing Date,
if a Lien on such property is required by Section 6.12(c), the Borrower shall deliver and
shall cause each of its Subsidiaries to deliver such documentation as the Administrative Agent may
deem necessary or desirable in connection with the creation of such Lien, including mortgages,
deeds of trust, security agreements, UCC-1 financing statements, and real estate title insurance
policies (or copies of such policies issued to the Term Administrative Agent), surveys,
environmental reports, landlord’s waivers, certified resolutions and other organizational and
authorizing documents of the grantor of liens, favorable opinions of counsel (which shall cover,
among other things, the legality, validity, binding effect and enforceability of the documentation
referred to above and the perfection of the Administrative Agent’s Liens thereunder) and other
items of the types required to be delivered pursuant to Section 4.01, all in form, content
and scope reasonably satisfactory to the Administrative Agent.



     (e) Notwithstanding anything to the contrary in this Agreement, prior to the Subordinated Debt
Prepayment Date, (i) the Giant Companies shall not be required to grant Liens in assets or
properties of the type which would constitute Term Priority Collateral, and (ii) the Guaranties and
other Collateral Documents executed by the Giant Companies shall contain limitations so that the
amount of Indebtedness guaranteed or secured, as applicable, pursuant thereto shall not exceed the
limitations set forth in the Giant Subordinated Indentures.



     (f) Notwithstanding anything to the contrary in this Agreement, (i) as long as Navajo
Convenient Stores Co., LLC has total assets with a book value of less than $5,000,000 and has not
guaranteed any Indebtedness, Navajo Convenient Stores Co., LLC shall not be required to execute



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Collateral Documents; and (ii) as long as Giant Yorktown Holding Company has no assets and has
not guaranteed any Indebtedness other than the Giant Subordinated Notes, Giant Yorktown Holding
Company shall not be required to execute any Collateral Documents.



     (g) In the case of assets or properties other than the Refineries, this Agreement and the
other Loan Documents shall not require the creation or perfection of Liens in particular properties
or assets if and for so long as, in the reasonable judgment of the Administrative Agent, the cost
of creating or perfecting such Liens in such property shall be excessive in view of the benefits to
be obtained by the Lenders therefrom. The Administrative Agent may grant extensions of time for
the creation and perfection of Liens in particular assets or property where it determines, in
consultation with the Borrower, that such action cannot be accomplished without undue effort or
expense by the time or times at which it would otherwise be required by this Agreement or the other
Loan Documents.



     6.13 Prepayment of Giant Subordinated Notes. The Borrower shall cause the following to occur on or before the date that is 60 days after the
Closing Date:



     (a) The Giant 11% Subordinated Notes and the Giant 8% Subordinated Notes shall have been
redeemed in full and the Borrower shall deliver to the Administrative Agent a certificate of a
Responsible Officer certifying that such notes have been redeemed in full.



     (b) Promptly upon the redemption of such notes, the Borrower shall deliver or cause the Giant
Companies to deliver documentation granting and perfecting second priority Liens in favor of the
Administrative Agent (on behalf of the Lenders) in Term Priority Collateral owned by the Giant
Companies, consistent with the documentation granted on such date pursuant to the Term Loan Credit
Agreement including (i) mortgages or deeds of trust relating to the Bloomfield Refinery, the Ciniza
Refinery, and the Yorktown Refinery, (ii) current and effective commitments for mortgagee policies
of title insurance with customary endorsements for the Bloomfield Refinery, the Ciniza Refinery,
and the Yorktown Refinery, containing no material exceptions to title other than those set forth in
the commitments delivered on the Closing Date and as consistent with the commitments delivered
pursuant to the Term Loan Credit Agreement, or copies of such commitments issued to the Term
Administrative Agent, and (iii) security agreements and other Collateral Documents, opinions of
counsel and other customary related closing documents as may be reasonably required by the
Administrative Agent consistent with those delivered pursuant to the Term Loan Credit Agreement,
and (iv) evidence of insurance with the Administrative Agent, Control Agent and/or the Lenders
named as loss payee or additional insured, as applicable.



     (c) Promptly upon the redemption of Giant 11% Subordinated Notes and the Giant 8% Subordinated
Notes, the Borrower shall deliver or cause the Giant Companies to deliver such amended and restated
Collateral Documents and such replacement Collateral Documents as shall be deemed necessary by the
Administrative Agent to remove the limitations, permitted prior to the Subordinated Debt Prepayment
Date pursuant to Section 6.12(e), on the amount of Obligations guaranteed and the amount of
Obligations secured.



     6.14 Further Assurances. Promptly upon request by the Administrative Agent or the Required Lenders, the Borrower shall
(and shall cause any of its Subsidiaries to) do, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register, any and all such further acts, deeds, conveyances,
security agreements, mortgages, assignments, estoppel certificates, financing statements and
continuations thereof, termination statements, notices of assignment, transfers, certificates,
assurances and other instruments the
Administrative Agent or such Lenders, as the case may be, may reasonably require from time to time
in order to (i) carry out more effectively the purposes of this Agreement or any other Loan
Document, (ii) subject to the Liens created by any of the Collateral Documents as any of the
properties, rights or interests covered by any of the Collateral Documents, (iii)



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perfect and
maintain the validity, effectiveness and priority of any of the Collateral Documents and the Liens
intended to be created thereby, and (iv) better assure, convey, grant, assign, transfer, preserve,
protect and confirm to the Administrative Agent and Lenders the rights granted or now or hereafter
intended to be granted to the Lenders under any Loan Document or under any other document executed
in connection therewith.



ARTICLE VII.

NEGATIVE COVENANTS




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



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



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided, that (i) the property covered thereby is not changed,
(ii) the amount secured or benefited thereby is not increased, and (iii) the direct or any
contingent obligor with respect thereto is not changed;



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



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



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



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



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



     (h) Liens (other than Liens on the Collateral) securing judgments for the payment of money not
constituting an Event of Default under Section 8.01(h);



     (i) Liens securing Indebtedness permitted under Section 7.03(f); provided,
that (i) such Liens do not at any time encumber any property other than the property
financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or
fair market value, whichever is lower, of the property being acquired on the date of acquisition;



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     (j) Subject to the provisions of the Deposit Account Control Agreements, Liens arising solely
by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a dedicated cash collateral
account and is not subject to restrictions against access by the Borrower, (ii) the Borrower (or
applicable Subsidiary) maintains (subject to such right of set off) dominion and control over such
account(s), and (iii) such deposit account is not intended by the Borrower, any Guarantor or any
Subsidiary to provide cash collateral to the depository institution;



     (k) Liens (including Liens on Collateral to the extent provided herein) on crude oil supplied
by Statoil pursuant to the Statoil Purchase Agreement, securing Indebtedness owed to Statoil
incurred or assumed for the purpose of financing all or any part of the cost of acquiring such
crude oil; provided, that (i) any such Lien has attached prior to acquisition of such crude oil or
attaches to such crude oil concurrently with or within 20 days after the acquisition thereof, (ii)
such Lien attaches solely to the crude oil financed by such Indebtedness, (iii) the principal
amount of the Indebtedness secured thereby does not exceed the cost of such crude oil, and (iv)
such Liens in favor of Statoil shall be subject to the terms of the Statoil Intercreditor
Agreement;



     (l) Liens on cash and cash equivalents not exceeding at any time in the aggregate an amount
equal to $5,000,000, securing obligations of the Borrower or its Subsidiaries pursuant to commodity
swap transactions;



     (m) Liens securing obligations under the Term Loan Documents or securing Refinancing
Indebtedness permitted by Section 7.03(b), covering Collateral that is also subject to
Liens in favor of the Administrative Agent, provided that such Liens are subject to the
Intercreditor Agreement;



     (n) the interests of E.I. DuPont de Nemours and Company (“DuPont”) under the Ground
Lease between DuPont (executed by DuPont on June 29, 2005) and Western Refining Company, L.P.
(executed by Western Refining Company, L.P. on June 27, 2005); and



     (o) Any Liens (other than Liens on the Collateral), not otherwise described in Subsections
7.01(a) through 7.01(n) above securing Indebtedness or other payment obligations,
provided that the Indebtedness and other obligations secured by such Liens shall
not any time exceed $10,000,000 in the aggregate at any time outstanding.



     7.02 Investments. Make or hold any Investments, except:



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



     (b) advances to officers, directors and employees of the Borrower and its Subsidiaries in an
aggregate amount not to exceed $3,000,000 at any time outstanding for travel, entertainment,
relocation and analogous ordinary business purposes, in accordance with any applicable Laws;



     (c) Investments in a wholly-owned Subsidiary that is a Guarantor or that becomes a Guarantor
upon the making of such Investment;



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



     (e) Guarantees permitted by Section 7.03;



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     (f) Investments in non-wholly-owned Subsidiaries, provided that no Default
exists at the time of or as a result of such Investment and the dollar amount of such Investments
shall not exceed $30,000,000 in the aggregate in any fiscal year;



     (g) Investments in Permitted Joint Ventures, provided that no Default exists
at the time of or as a result of such Investment and the dollar amount of such Investments shall
not exceed $75,000,000 in the aggregate during the term of this Agreement;



     (h) extensions of credit described in Schedule 7.02 through and including the maturity
date thereof, but not any increases or renewals;



     (i) Investments of the type described in clause (c) of the definition of “Investment”,
provided that no Default exists at the time of or as a result of such Investment; and



     (j) other Investments not exceeding $100,000,000 in the aggregate during the term of this
Agreement.



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



     (a) Indebtedness of the Loan Parties under the Loan Documents;



     (b) Indebtedness of the Borrower under the Term Loan Documents in an aggregate principal
amount not to exceed at any time the Term Loan Maximum Amount, and any refinancings, renewals or
extensions of all or any part thereof, provided that (i) the amount of Indebtedness is not
increased at the time of such refinancing, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing, renewal, or extension, (ii) the maturity date of such
refinancing, renewing or extending Indebtedness (“Refinancing Indebtedness”) is no earlier
than the maturity date of the Indebtedness being refinanced, renewed or extended (“Refinanced
Indebtedness”) and the average life to maturity of such Refinancing Indebtedness is at least
equal to that of the Refinanced Indebtedness, (iii) the material terms (other than pricing and
yield) of such Refinancing Indebtedness or of any agreement entered into or of any instrument
issued in connection therewith are not less favorable in any material respect to the Loan Parties
or the Lenders than the terms of any agreement or instrument governing the Refinanced Indebtedness,
(iv) if such Refinancing Indebtedness is secured, no collateral secures the Refinancing
Indebtedness other than collateral that secures the Refinanced Indebtedness, and (v) such
Refinancing Indebtedness (and, if applicable the Liens securing same) do not contravene the
provisions of the Intercreditor Agreement, and if such Refinancing Indebtedness is secured, the
holders of such Refinancing Indebtedness, or a duly authorized agent on their behalf, agree in
writing to be bound by the Intercreditor Agreement or enter into a replacement intercreditor
agreement containing terms that are substantially similar to those of the Intercreditor Agreement,
as may be acceptable to the Administrative Agent;



     (c) (i) Indebtedness of Giant under the Giant Subordinated Notes and Guarantees thereof by
Guarantors that are Subsidiaries of Giant Industries, Inc. to the extent such Subsidiaries
guarantee such Indebtedness prior to the Merger, and (ii) Indebtedness of Giant and its
Subsidiaries permitted by clauses (B), (C) and (D) of Section
7.17(a)(ii);



     (d) Guarantees of the Borrower or any Guarantor in respect of other Indebtedness otherwise
permitted hereunder of the Borrower or any Guarantor;



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



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



     (f) Indebtedness of the Borrower or any Guarantor in respect of capital leases, Synthetic
Lease Obligations and purchase money obligations for fixed or capital assets within the limitations
set forth in Section 7.01(i); provided, however, that the aggregate amount
of all such Indebtedness at any one time outstanding shall not exceed $50,000,000;



     (g) obligations of Western Refining Company, L.P. under the Ground Lease described in
Section 7.01(n) and under the Sulfuric Acid Regeneration and Sulfur Gas Processing
Agreement between E.I. DuPont de Nemours and Company and Western Refining Company, L.P. executed in
connection therewith;



     (h) Indebtedness of a Subsidiary owed to the Borrower or to a Guarantor, provided that such
Indebtedness (i) constitutes Collateral upon which the Administrative Agent has a perfected first
priority Lien to secure the Obligations, and (ii) in the case of Indebtedness owed to a Guarantor,
is subordinated to the Obligations on subordination terms acceptable to the Administrative Agent,
and (iii) is otherwise permitted under the provisions of Section 7.02;



     (i) unsecured Indebtedness of the Borrower in an aggregate principal amount not to exceed
$500,000,000 at any time outstanding, provided that (A) the maturity date of such
Indebtedness is no earlier than the maturity date then in effect for the Term Loan Indebtedness or
the maturity date then in effect for any secured Refinancing Indebtedness, and (B) the material
terms of such Indebtedness or of any agreement entered into or of any instrument issued in
connection therewith are not less favorable in any material respect to the Loan Parties or the
Lenders than the terms of the Loan Documents; and



     (j) unsecured Indebtedness of the Borrower or any Guarantor in an aggregate principal amount
not to exceed $300,000,000 at any time outstanding.



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



     (a) the Borrower may merge with any other Person, provided, that the Borrower
shall be the continuing or surviving Person;



     (b) any Subsidiary may merge with (i) the Borrower, subject to clause (a) above, and
(ii) any one or more other Subsidiaries provided that if a Guarantor is a party to such
merger, the Guarantor shall be the continuing or surviving Person; and



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



     7.05 Dispositions.



     (a) Make any Disposition or enter into any agreement to make any Disposition, except that,
subject to the terms of Section 7.05(b), the following shall be permitted:



72









 






     (i) Dispositions of obsolete or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business;




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




     (iii) Leases of property in the ordinary course of business, provided that unless
otherwise agreed by the Administrative Agent, any lease of any property that constitutes
Collateral must be expressly subordinate (by the terms of lease or pursuant to a
subordination agreement satisfactory to the Administrative Agent containing standard
subordination language and, if agreed to by the Administrative Agent, standard
non-disturbance language) to the Administrative Agent’s Liens under the applicable deed of
trust or mortgage;




     (iv) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;




     (v) Dispositions of property by any Subsidiary to the Borrower or to a wholly-owned
Subsidiary; provided, that if the transferor of such property is a
Guarantor, the transferee thereof must either be the Borrower or a Guarantor;




     (vi) Dispositions permitted by Section 7.04;




     (vii) Dispositions of other property in connection with scheduled turnarounds,
maintenance and equipment and facility updates; and




     (viii) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under
this Section 7.05; provided, that at the time of such Disposition, no
Default shall exist or would result from such Disposition, and provided
further that in the case of a Disposition of Borrowing Base Assets to which
Section 2.14(e) applies, the Borrower shall comply with the terms of such Section;


provided, however, that (y) to the extent a mandatory prepayment of Term Loan
Indebtedness is required by the Term Loan Credit Agreement as result of such Disposition, the
Borrower shall make such mandatory prepayments; and (z) any Disposition pursuant to clauses
(i) through (viii) shall be for fair market value.




     (b) Notwithstanding anything to the contrary set forth in this Section 7.05, neither
the Borrower nor any Subsidiary shall Dispose of any Refinery or enter into any agreement to
Dispose of any Refinery.



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



     (a) so long as no Default shall have occurred and be continuing at the time of any action
described below or would result therefrom:




     (i) each Subsidiary may make Restricted Payments to the Borrower, the Guarantors and
any other Person that owns an Equity Interest in such Subsidiary, ratably according to their
respective holdings of the type of Equity Interest in respect of which such Restricted
Payment is being made;



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




     (iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity
Interests issued by it with the proceeds received from the substantially concurrent issue of
new shares of its common stock or other common Equity Interests; and



     (b) the Borrower may declare and pay cash dividends to its stockholders provided
that the aggregate amount paid during any fiscal year does not exceed the maximum dollar
amount calculated as follows: the maximum dollar amount for fiscal year 2007 shall be $25,000,000
and the maximum dollar amount for each succeeding fiscal year shall be calculated by adding
$10,000,000 to the maximum amount in effect for the prior fiscal year; and provided
further that (i) no Default exists at the time such dividends are declared or paid or would
result from the payment thereof or (ii) if such dividends are paid within 75 days of declaration
thereof, no Default exists at the date of such declaration; and



     (c) the Borrower may purchase, redeem or otherwise acquire for cash Equity Interests issued by
it, provided that the aggregate amount of such purchases, redemptions and acquisitions made after
the Closing Date does not exceed $100,000,000 and provided further that no Default exists at the
time of such action or would result therefrom.



     7.07 Change in Nature of Business. Engage in any material line of business substantially different from those lines of business
conducted by the Borrower, the Western Subsidiaries and the Giant Companies on the date hereof or
any business substantially related or incidental thereto. Ownership of a pipeline is a line of
business permitted by this Section 7.07.



     7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in the
ordinary course of business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such Subsidiary at the
time in a comparable arm’s length transaction with a Person other than an Affiliate; provided that
the foregoing restriction shall not apply to transactions between or among the Loan Parties.



     7.09 Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other than this Agreement, the Term
Loan Credit Agreement, agreements governing Refinancing Indebtedness (subject to clause (iii) of
Section 7.03(b)), and the Giant Subordinated Indentures (subject to Section 6.13))
that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to the Borrower or to
any Guarantor or to otherwise transfer property to the Borrower or any Guarantor, or (ii) of any
Subsidiary to Guarantee the Obligations of the Borrower, or (iii) of the Borrower or any Subsidiary
to create, incur, assume or suffer to exist Liens on property of such Person, provided,
however, that this clause (iii) shall not prohibit any negative pledge in favor of any holder of
Indebtedness permitted under Section 7.03(f) solely to the extent any such negative pledge
or other restriction on transfer of property relates to the property financed by or the subject of
such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a
Lien is granted to secure another obligation of such Person.



     7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying
margin stock or to refund Indebtedness originally incurred for such purpose.



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     7.11 Financial Covenants.



     (a) Permit the Consolidated Interest Coverage Ratio as of September 30, 2007 or as of the end
of any fiscal quarter thereafter to be less than the ratio set forth below opposite such fiscal
quarter:



	 	 	 	 	 
	Four Fiscal Quarters Ending	 	Minimum Consolidated Interest Coverage Ratio
	September 30, 2007 through June 30, 2009
	 	2.50 to 1.00	 
	September 30, 2009 and thereafter
	 	2.75 to 1.00	 
	     (b) Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter to be greater
than the ratio set forth below opposite such fiscal quarter:


	 
	Fiscal Quarter Ending	 	Maximum Consolidated Leverage Ratio
	June 30, 2007 through June 30, 2009
	 	4.00 to 1.00	 
	September 30, 2009 through September 30, 2010
	 	3.75 to 1.00	 
	December 31, 2010 and thereafter
	 	3.50 to 1.00	 
	     7.12 Capital Expenditures. Make or become legally obligated to make any Capital Expenditure, except for Capital
Expenditures not exceeding, in the aggregate for the Borrower and its Subsidiaries (1) an amount
equal to $300,000,000 in the aggregate from and after the Closing Date for replacement and/or
acquisition of operating units for Refineries, plus (2) an amount, during each fiscal year
set forth below, equal to the amount set forth opposite such fiscal year:



	 
	Fiscal Year	 	Amount
	2007
	 	$350,000,000	 
	2008 and each fiscal year thereafter
	 	$300,000,000	 





provided, however, that so long as no Default has occurred and is continuing or
would result from such expenditure, any portion of any amount set forth above, if not expended in
the fiscal year for which it is permitted above, may be carried over for expenditure in the next
following fiscal year.




     7.13 Prepayment of Certain Other Indebtedness. At any time before repayment in full of all Term Loan Indebtedness and of all secured Refinancing
Indebtedness, make any voluntary, optional or other non-scheduled payment, prepayment, redemption,
acquisition for value (including without limitation by way of depositing money or securities with
the trustee with respect thereto before due for the purpose of paying when due) of any unsecured
Indebtedness incurred after the Closing Date and issued pursuant to Section 7.03(b) or
7.03(i).



     7.14 Amendments to Term Loan Documents. Amend the terms of the Term Loan Documents or of documents governing Refinancing Indebtedness,
if such amendment would (i) increase the amount of such Indebtedness except by an amount equal to
reasonable fees and expenses incurred in connection with such amendment (provided that the Borrower
shall be permitted to (x) exercise its option under Section 2.13 of the Term Loan Credit
Agreement to increase the term loans thereunder by an amount that, when added to increases in
Commitments pursuant to Section 2.16, does not exceed $300,000,000, and (y) exercise its
option under Section 2.14 of the Term Loan Credit Agreement to borrow additional amounts to
fund Acquisitions and related transaction costs), (ii) change the maturity date to a date that is
earlier than twelve (12) months after the Maturity Date of this Agreement then in effect, (iii)
shorten the average life to maturity of such Indebtedness, (iv) result in the material terms of
such Indebtedness or of any agreement entered into or of any instrument issued in connection
therewith to be less favorable in any material respect to the Loan Parties or the Lenders, or (v)
contravene the provisions of the Intercreditor Agreement.



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     7.15 Designation of Senior Debt. Designate any Indebtedness (other than the Indebtedness under the Loan Documents or the Term
Loan Documents) of the Borrower or any of its Subsidiaries as “Designated Senior Debt” (or any
similar term) under, and as defined in, the Giant Subordinated Indentures.



     7.16 Giant Subordinated Notes.



     (a) Amend, modify or change, or consent or agree to any amendment, modification or change to
any of the terms of the Giant Subordinated Notes, the Giant Subordinated Indentures or the
guaranties executed in connection therewith, other than (i) any such amendment which would extend
the maturity, reduce the amount of any payment of principal thereof, reduce the interest rate, or
extend any date of payment thereon, (ii) non-material amendments that do not affect the Lenders,
(iii) amendments that eliminate or render less restrictive any representation or warranty,
covenant, obligation or default, and (iv) such other amendments and modifications acceptable to the
Required Lenders; or



     (b) Make any payments to the holders of the Giant Subordinated Notes or to any trustee acting
under the Giant Subordinated Indentures in contravention of the subordination provisions or other
terms of such Giant Subordinated Indentures.



     7.17 Restrictions on Giant Companies Prior to the Subordinated Debt Prepayment Date.



     (a) Until the Subordinated Debt Prepayment Date has occurred and the Giant Companies have
delivered such documents as are required by the Administrative Agent pursuant to Section
6.13, notwithstanding anything to the contrary in this Agreement:




     (i) Neither the Borrower nor any Subsidiary will make Investments in any Giant Company
other than loans by the Borrower to Giant in compliance with this Section 7.17
(“Giant Company Loans”). The Giant Company Loans shall be evidenced by a promissory
note executed by Giant, in form and substance satisfactory to the Administrative Agent, with
the same payment terms as applicable hereunder to the Loans (the “Giant Company
Note”). The Administrative Agent shall have a perfected first priority lien in such
note. The Borrower will maintain accurate records of each Giant Company Loan made and
payments of principal and interest made by Giant with respect thereto.




     The unpaid principal amount of Giant Company Loans at any time outstanding shall not
exceed $100 million.




     (ii) No Giant Company will incur or permit to exist any Indebtedness other than (A)
Indebtedness permitted by Sections 7.03(a) and 7.03(c), (B) Giant Company
Loans permitted by Section 7.17(a), (C) Indebtedness owed to Statoil referenced in
Section 7.01(k), and (D) other Indebtedness not to exceed $10,000,000 in the
aggregate at any time outstanding.




     (iii) Neither the Borrower nor any Western Subsidiary may transfer assets to any Giant
Company, except (A) sales and other transfers in the ordinary course of business and (B)
other transfers of assets with a book value of not more than $10,000,000 in the aggregate.




     (iv) No Giant Company may make, directly or indirectly, any Investments except those
permitted by Sections 7.02(a), 7.02(b), 7.02(c), and
7.02(h).



     (b) [Intentionally Blank]



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ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




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



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



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.03(a), 6.05(a), 6.11 or Article
VII; or



     (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days; or



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



     (e) Cross-Default.




     (i) The Borrower or any Subsidiary (A) fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of
any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event occurs,
the effect of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect thereof to be
demanded; or




     (ii) There occurs under any Swap Contract an Early Termination Date (as defined in such
Swap Contract) resulting from (A) any event of default under such Swap Contract as to which
the Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or
(B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower
or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater
than the Threshold Amount; or




     (iii) An Event of Default as defined in the Term Loan Credit Agreement shall occur; or



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



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



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



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



     (j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect;
or any Loan Party or any other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or any Loan Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind any provision of
any Loan Document; or



     (k) Change of Control. There occurs any Change of Control; or



     (l) Collateral.




     (i) Any material provision of any Collateral Document shall for any reason cease to be
valid and binding on or enforceable against the Borrower or any Subsidiary party thereto or
the Borrower or any Subsidiary shall so state in writing or bring an action to limit its
obligations or liabilities thereunder; or



78









 






     (ii) Any Collateral Document shall for any reason (other than pursuant to the terms
thereof) cease to create a valid security interest in the Collateral purported to be covered
thereby or such security interest shall for any reason cease to be a perfected security
interest with the priority required pursuant to this Agreement; or




     (iii) Any holders of the Term Priority Collateral (or the Term Administrative Agent)
fail to comply with the terms of the Intercreditor Agreement (with respect to the Term
Priority Collateral) in any respect materially adverse to the Lenders; or



     (m) Subordination. At any time that any Giant 8% Subordinated Notes or Giant 11%
Subordinated Notes remain outstanding, (i) the subordination provisions of the Giant Subordinated
Indentures (the “Subordination Provisions”) shall, in whole or in part, terminate, cease to
be effective or cease to be legally valid, binding and enforceable against any holder of the Giant
Subordinated Notes; or (ii) the Borrower, any other Loan Party, the trustee under the Giant
Subordinated Indentures, or any successor trustee shall, directly or indirectly, disavow or contest
in any manner (A) the effectiveness, validity or enforceability of any of the Subordination
Provisions, (B) that the Subordination Provisions exist for the benefit of the Administrative
Agent, the Lenders and the L/C Issuer or (C) that all payments of principal of or premium and
interest on the Giant Subordinated Notes, or realized from the liquidation of any property of any
Loan Party, shall be subject to any of the Subordination Provisions.



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



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



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



     (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and



     (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer under the Loan Documents;


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




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



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



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



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



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



     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit, ratably among the L/C Issuers in proportion to the undrawn amounts of Letters of Credit
issued by each L/C Issuer;



     Sixth, to payment of unpaid Obligations then due under Lender Swap Contracts and Cash
Management Agreements, ratably among the Lender Swap Providers and the Cash Management Banks in
proportion to the respective amounts described in this clause Sixth owed to them; and



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



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



ARTICLE IX.

ADMINISTRATIVE AGENT




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



     (b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if
applicable), potential Lender Swap Provider and potential Cash Management Bank) and the L/C Issuer
hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such
Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on
Collateral granted by



80









 







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



     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as
the financial advisor or in any other advisory capacity for and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not
the Administrative Agent hereunder and without any duty to account therefor to the Lenders.



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



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



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



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



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



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any



81









 







Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or the issuance of a
Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C
Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or
the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such
Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.
The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.



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



     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C
Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C
Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided, that if the Administrative Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
and the L/C Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as
provided above in this Section). The



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fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.



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



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance
upon
the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.



     9.08 No Other Duties, etc. Anything herein to the contrary notwithstanding, none of the book managers, arrangers or agents,
if any, listed on the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the L/C Issuer hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the
principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise



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



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



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     and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to
make such payments to the Administrative Agent and, in the event that the Administrative Agent
shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to
the Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.09 and 10.04.



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



     9.10 Collateral and Guaranty Matters.



     (a) The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its
option and in its discretion:




     (i) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (A) upon termination of the Commitments, the expiration or
termination of all Letters of Credit, and payment in full of all Obligations (other than
contingent indemnification obligations) under this Agreement and the other Loan Documents,
and payment in full of all other Obligations (as such term is defined for purposes of the
Collateral Documents) that are due and payable or otherwise accrued and owing at or prior to
the time the Obligations under this Agreement are paid, (B) that is sold or to be sold as
part of or in connection with any sale permitted hereunder or under any other Loan Document,
or (C) subject to Section 10.01, if approved, authorized or ratified in writing by
the Required Lenders;




     (ii) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document (A) to the holder of any Lien on such property that is
permitted by Section 7.01(i), and (B) as may be required pursuant to the
Intercreditor Agreement; and




     (iii) to release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of Collateral, or to release any Guarantor from its obligations under the Guaranty
pursuant to this Section 9.10.



     (b) Upon the occurrence and continuance of an Event of Default, the Lenders agree to promptly
confer in order that the Required Lenders or the Lenders, as the case may be, may agree upon a
course of action for the enforcement of the rights of the Lenders; and the Administrative Agent
shall be entitled to refrain from taking any action (without incurring any liability to any Person
for so refraining) unless and until the Administrative Agent shall have received instructions from
the Required Lenders. All rights of action under the Loan Documents and all rights to the
Collateral, if any, hereunder may be enforced by the Administrative Agent and any suit or
proceeding instituted by the Administrative Agent in furtherance of such enforcement shall be
brought in its name as the Administrative Agent without the necessity of joining as plaintiffs or
defendants any other the Lender, and the recovery of any judgment shall be for the benefit of the
Lender Secured Parties subject to the expenses of the Administrative Agent.



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     (c) Each Lender authorizes and directs the Administrative Agent to enter into the Collateral
Documents for the benefit of the Lender Secured Parties, and to enter into the Statoil
Intercreditor Agreement. Except to the extent unanimity is required hereunder, each Lender agrees
that any action taken by the Required Lenders in accordance with the provisions of the Loan
Documents, and the
exercise by the Required Lenders of the powers set forth herein or therein, together with such
other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders.



     (d) The Administrative Agent is hereby authorized on behalf of all of the Lenders, without the
necessity of any notice to or further consent from any Lender, from time to time to take any action
with respect to any Collateral or Collateral Documents which may be necessary to perfect and
maintain perfected the Liens upon the Collateral granted pursuant to the Collateral Documents.



     (e) The Administrative Agent shall have no obligation to any Lender or to any other Person to
assure that the Collateral exists or is owned by any Loan Party or is cared for, protected, or
insured or has been encumbered or that the Liens granted to the Administrative Agent herein or
pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected, or
enforced, or are entitled to any particular priority, or to exercise at all or in any particular
manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the
rights granted or available to the Administrative Agent in this Section 9.10 or in any of
the Collateral Documents; it being understood and agreed that in respect of the Collateral, or any
act, omission, or event related thereto, the Administrative Agent may act in any manner it may deem
appropriate, in its sole discretion, and that the Administrative Agent shall have no duty or
liability to any Lender, other than to act without gross negligence or willful misconduct.



     (f) In furtherance of the authorizations set forth in this Section 9.10, each Lender
hereby irrevocably appoints the Administrative Agent its attorney-in-fact, with full power of
substitution, for and on behalf of and in the name of each such Lender, (i) to enter into
Collateral Documents (including, without limitation, any appointments of substitute trustees under
any Collateral Document), (ii) to take action with respect to the Collateral and Collateral
Documents to perfect, maintain, and preserve the Lender’s Liens, and (iii) to execute instruments
of release or to take other action necessary to release Liens upon any Collateral to the extent
authorized in clause (a) hereof. This power of attorney shall be liberally, not
restrictively, construed so as to give the greatest latitude to the Administrative Agent’s power,
as attorney, relative to the Collateral matters described in this Section 9.10. The powers
and authorities herein conferred on the Administrative Agent may be exercised by the Administrative
Agent through any Person who, at the time of the execution of a particular instrument, is an
officer of the Administrative Agent. The power of attorney conferred by this Section
9.10(f) is granted for valuable consideration and is coupled with an interest and is
irrevocable so long as the Obligations, or any part thereof, shall remain unpaid or the Lenders
have any Commitments under the Loan Documents.



ARTICLE X.

MISCELLANEOUS




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



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



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



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



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document, without the written
consent of each Lender entitled to such amount; provided, however, that only the
consent of the Required Lenders shall be necessary to amend (i) the definition of “Default
Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at
the Default Rate or (ii) any financial covenant hereunder (or any defined term used therein) even
if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C
Borrowing or to reduce any fee payable hereunder;



     (e) change Section 2.13 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



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



     (g) except as provided in Section 9.10 and except as required pursuant to the
Intercreditor Agreement, release all or substantially all of the Collateral in any transaction or
series of related transactions, without the written consent of each Lender; or



     (h) release all or substantially all of the value of the Guaranty, without the written consent
of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted
pursuant to Section 9.10 (in which case such release may be made by the Administrative
Agent acting alone);


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender.




     If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that has been approved by
the Required Lenders, the Borrower may replace such non-consenting Lender in accordance with
Section 10.13; provided that such amendment, waiver, consent or release can be
effected as a result of the assignment contemplated by such Section (together with all other such
assignments required by the Borrower to be made pursuant to this paragraph).



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     10.02 Notices; Effectiveness; Electronic Communication.



     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b)
below), all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as follows:




     (i) if to a Loan Party, the Administrative Agent, the L/C Issuer, or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02, or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated by such Person in
writing to the other parties; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire, or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated by such
Person in writing to the other parties.



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



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



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



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR



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STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have
any liability to the Borrower, any Lender, the L/C Issuer or any other Person for losses, claims,
damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out
of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or expenses are
determined by a court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent Party; provided,
however, that in no event shall any Agent Party have any liability to the Borrower, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).



     (d) Change of Address, Etc. The Borrower, the Administrative Agent, the L/C Issuer
and the Swing Line Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other communications hereunder by
notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.



     Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of
such Public Lender to at all times have selected the “Private Side Information” or similar
designation on the content declaration screen of the Platform in order to enable such Public Lender
or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law,
including United States Federal and state securities Laws, to make reference to Borrower Materials
that are not made available through the “Public Side Information” portion of the Platform and that
may contain material non-public information with respect to the Borrower or its securities for
purposes of United States Federal or state securities laws.



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



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



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     10.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower agrees to pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
preparation, negotiation, execution, delivery and administration of this Agreement and the other
Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or the L/C Issuer) in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.



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



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



89









 







L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided, that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its
capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission systems in connection with
this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.



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



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



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



     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations
hereunder without the prior written consent of the Administrative Agent and each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of subsection (b) of this Section 10.06,
(ii) by way of participation in




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accordance with the provisions of subsection (d) of this Section 10.06, and
(iii) by way of pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section 10.06, (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section 10.06, and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.




     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date”
is specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000 unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met;




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in
respect of Swing Line Loans;




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in
addition:




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to a
Person that



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is not a Lender, an Affiliate of such Lender or an Approved Fund with respect
to such Lender;




     (C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and




     (D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and
10.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its



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Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or
Swing Line Loans) owing to it); provided, that (i) such Lender’s obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided,
that such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification described in the
first proviso to Section 10.01 that affects such Participant. Subject to subsection
(e) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject
to Section 2.13 as though it were a Lender.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Sections 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) as though it were a Lender.



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



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



     (h) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30
days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice
to the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor
L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by
the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C
Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it
shall retain all the rights and obligations of the L/C Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C
Obligations with respect thereto (including the right to require the Lenders to make Base Rate
Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to



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




     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuer agree to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or any
Eligible Assignee invited to be a Lender pursuant to Section 2.16(c), (ii) any pledge
referred to in Section 10.06(f), or (iii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g)
with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower.



     For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided, that, in the case of information received from the Borrower
or any Subsidiary after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.



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



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, Administrative Agent, each Lender,
the L/C Issuer and each of their respective Affiliates, is hereby authorized at any time and from
time to time, to the fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever



94









 







currency) at any time owing by Administrative Agent,
such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the
Borrower or any other Loan Party against any and all of the obligations of the Borrower or such
Loan Party now or hereafter existing under this Agreement or any other Loan Document to
Administrative Agent, such Lender, the L/C Issuer or any such Affiliate, irrespective of whether or
not Administrative Agent, such Lender or the L/C Issuer shall have made any demand under this
Agreement or any other Loan Document and although such obligations of the Borrower or such Loan
Party may be contingent or unmatured or are owed to a branch or office of Administrative Agent,
such Lender or the L/ C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of Administrative Agent, each Lender, the L/C Issuer
and their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that Administrative Agent, such Lender, the L/C Issuer or their
respective Affiliates may have. Administrative Agent, each Lender and the L/C Issuer agree to
notify the Borrower, and each Lender shall notify the Administrative Agent, promptly after any such
setoff and application, provided, that the failure to give such notice shall not
affect the validity of such setoff and application.



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



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other 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.
Except as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto.



     Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.



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



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     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender, or if the
Borrower has the right to replace a Lender pursuant to Section 10.01 or if any other
circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party
hereto, then the Borrower may, at its expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Section
10.06), all of its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment), provided, that:



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



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



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



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



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



     10.14 Governing Law; Jurisdiction; etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK, NEW YORK AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION



96









 







OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND
THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection
with any amendment, waiver or other modification hereof or of any other Loan Document), the
Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the Administrative Agent and the
Arranger are arm’s-length commercial transactions between the Borrower and its Affiliates, on the
one hand, and the Administrative Agent and the Arranger, on the other hand, (B) the Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii)
(A) the Administrative Agent and the Arranger each is and has been acting solely as a principal
and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will
not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or



97









 







any
other Person and (B) neither the Administrative Agent nor the Arranger has any obligation to the
Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent and the Arranger and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Borrower and its
Affiliates, and neither the Administrative Agent nor the Arranger has any obligation to disclose
any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law,
the Borrower hereby waives and releases any claims that it may have against the Administrative
Agent and the Arranger with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.



     10.17 USA Patriot Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act.



     10.18 OTHER LIENS ON COLLATERAL; TERMS OF INTERCREDITOR AGREEMENT; ETC.



     (a) EACH LENDER PARTY HERETO UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT LIENS MAY BE CREATED ON
THE COLLATERAL PURSUANT TO THE TERM LOAN DOCUMENTS, WHICH LIENS ON THE REVOLVER PRIORITY COLLATERAL
SHALL BE REQUIRED TO BE SUBORDINATED AND JUNIOR TO THE LIENS CREATED PURSUANT TO THE LOAN DOCUMENTS
IN ACCORDANCE WITH THE TERMS OF THE INTERCREDITOR AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN OR IN
ANY LOAN DOCUMENT TO THE CONTRARY, THE LIENS AND SECURITY INTEREST GRANTED TO THE ADMINISTRATIVE
AGENT PURSUANT TO THE VARIOUS LOAN DOCUMENTS AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE LOAN DOCUMENTS ARE SUBJECT TO THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT. THE INTERCREDITOR AGREEMENT ALSO CONTAINS CERTAIN PROVISIONS PROVIDING
FOR RELEASES OF COLLATERAL PURSUANT TO THE LOAN DOCUMENTS IN
THE EVENT THAT SUCH COLLATERAL IS RELEASED PURSUANT TO THE TERM LOAN DOCUMENTS. PURSUANT TO
THE TERMS OF THE INTERCREDITOR AGREEMENT, IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE
INTERCREDITOR AGREEMENT AND ANY OF THE LOAN DOCUMENTS, THE PROVISIONS OF THE INTERCREDITOR
AGREEMENT SHALL GOVERN AND CONTROL.



     (b) EACH LENDER AUTHORIZES AND INSTRUCTS THE ADMINISTRATIVE AGENT TO ENTER INTO THE
INTERCREDITOR AGREEMENT ON BEHALF OF THE LENDERS, AND TO TAKE ALL ACTIONS (AND EXECUTE ALL
DOCUMENTS) REQUIRED (OR DEEMED ADVISABLE) BY IT IN ACCORDANCE WITH THE TERMS OF THE INTERCREDITOR
AGREEMENT.



     (c) THE PROVISIONS OF THIS SECTION 10.18 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT
PROVISIONS OF THE INTERCREDITOR AGREEMENT, THE FORM OF WHICH IS ATTACHED AS AN EXHIBIT TO THIS
AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL THE
TERMS AND CONDITIONS THEREOF. EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF
THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE ADMINISTRATIVE
AGENT NOR ANY OF



98









 







ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY OR
ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT.



     (d) Administrative Agent shall notify the Lenders of any amendment, modification or waiver of
the Intercreditor Agreement.



     10.19 Designated Indebtedness. All Obligations shall be, and are hereby designated as, “Designated Senior
Indebtedness” for purposes of, and as defined in, each of the Giant Subordinated Indentures.



     10.20 Termination of Commitments Under Existing Credit Agreements. The commitments of the lenders under the Existing Giant Credit Agreement, and the
commitments of the lenders under the Existing Western Credit Agreement shall terminate on the
Closing Date. Execution of this Agreement by a Lender who is also a lender under the Existing
Giant Credit Agreement shall constitute a waiver of the notice provisions in Section
2.05(a) of such credit agreement, and execution of this Agreement by a Lender who is also a
lender under the Existing Western Credit Agreement shall constitute a waiver of the notice
provisions in Section 2.06 of such credit agreement.



     10.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.



99









 





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



	 	 	 	 	 
	 	WESTERN REFINING, INC.,

a Delaware corporation, as Borrower

 	 
	 	By:  	/s/ Scott Weaver
 	 
	 	 	Scott Weaver 	 
	 	 	Chief Administrative Officer 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	/s/ Ronald E. McKaig
 	 
	 	 	Name:  	Ronald E. McKaig 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as L/C Issuer, Swing Line Lender, and a Lender

 	 
	 	By:  	/s/ Ronald E. McKaig
 	 
	 	 	Name:  	Ronald E. McKaig 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender

 	 
	 	By:  	/s/ Dwayne L. Coker
 	 
	 	 	Name:  	Dwayne L. Coker 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Niki Stone
 	 
	 	 	Name:  	Niki Stone 	 
	 	 	Title:  	Relationship Manager 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA,

as a Lender

 	 
	 	By:  	/s/ Andrew Ostrov
 	 
	 	 	Name:  	Andrew Ostrov 	 
	 	 	Title:  	Director 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Robert H. Milhorat
 	 
	 	 	Name:  	Robert H. Milhorat 	 
	 	 	Title:  	Director 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND plc,

as a Lender

 	 
	 	By:  	/s/ Lucy Walker
 	 
	 	 	Name:  	Lucy Walker 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	UBS LOAN FINANCE LLC,

as a Lender

 	 
	 	By:  	/s/ Richard L. Tavrow
 	 
	 	 	Name:  	Richard L. Tavrow 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                     /s/ Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	ABN AMRO BANK N.V.,

as a Lender

 	 
	 	By:  	/s/ Jamie Conn
 	 
	 	 	Name:  	Jamie Conn 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                      /s/ John Reed
 	 
	 	 	Name:  	John Reed 	 
	 	 	Title:  	Director 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	ALLIED IRISH BANKS p.l.c.,

as a Lender

 	 
	 	By:  	/s/ Edward M. Fenk
 	 
	 	 	Name:  	Edward M. Fenk 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                       /s/ Vaughn Buck
 	 
	 	 	Name:  	Vaughn Buck 	 
	 	 	Title:  	Director 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	BANK OF SCOTLAND,

as a Lender

 	 
	 	By:  	/s/ Karen Weich
 	 
	 	 	Name:  	Karen Weich 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	BNP PARIBAS,

as a Lender

 	 
	 	By:  	/s/ Mark A. Cox
 	 
	 	 	Name:  	Mark A. Cox 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                      /s/ Greg Smothers
 	 
	 	 	Name:  	Greg Smothers 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	FORTIS CAPITAL CORP.,

as a Lender

 	 
	 	By:  	/s/ Darrell Holley
 	 
	 	 	Name:  	Darrell Holley 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                    /s/ David Montgomery
 	 
	 	 	Name:  	David Montgomery 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD.,

as a Lender

 	 
	 	By:  	/s/ Leon Mo
 	 
	 	 	Name:  	Leon Mo 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	NATIXIS,

as a Lender

 	 
	 	By:  	/s/ Louise P. Laville, III
 	 
	 	 	Name:  	Louise P. Laville, III 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                    /s/ Daniel Payer
 	 
	 	 	Name:  	Daniel Payer 	 
	 	 	Title:  	Director 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	NATIONAL CITY BANK,

as a Lender

 	 
	 	By:  	/s/ Stephen Monto
 	 
	 	 	Name:  	Stephen Monto 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	RZB FINANCE LLC,

as a Lender

 	 
	 	By:  	/s/ Shirley Ritch
 	 
	 	 	Name:  	Shirley Ritch 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	 	 	 
	 	By:  	                  /s/ Dexter Beintrexler
 	 
	 	 	Name:  	Dexter Beintrexler 	 
	 	 	Title:  	President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	SOCIÉTÉ GÉNÉRALE,

as a Lender

 	 
	 	By:  	/s/ Chung-Taek Oh
 	 
	 	 	Name:  	Chung Taek Oh 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                      /s/ Emanuel Chesneau
 	 
	 	 	Name:  	Emanuel Chesneau 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	SUMITOMO MITSUI BANKING CORP., NEW YORK, as a Lender

 	 
	 	By:  	/s/ Masakazu Hasegawa
 	 
	 	 	Name:  	Masakazu Hasegawa 	 
	 	 	Title:  	Joint General Manager 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	SUNTRUST BANK,

as a Lender

 	 
	 	By:  	/s/ Peter Panos
 	 
	 	 	Name:  	Peter Panos 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Justin M. Alexander
 	 
	 	 	Name:  	Justin M. Alexander 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	BAYERISCHE LANDESBANK, NEW YORK BRANCH, as a Lender

 	 
	 	By:  	/s/ Georgina Fiordalisi
 	 
	 	 	Name:  	Georgina Fiordalisi 	 
	 	 	Title:  	Vice Pesident 	 
	 
	 	 	 
	 	By:  	                     /s/ Annette Schmidt
 	 
	 	 	Name:  	Annette Schmidt 	 
	 	 	Title:  	First Vice Presiden 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	CAPITAL ONE, NATIONAL ASSOCIATION

as a Lender

 	 
	 	By:  	/s/ Stan G. Weiser Jr.
 	 
	 	 	Name:  	Stan G. Weiser 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	COMERICA BANK,

as a Lender

 	 
	 	By:  	/s/ Charles T. Johnson
 	 
	 	 	Name:  	Charles T. Johnson 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	COMMERZBANK AG, NEW YORK AND

GRAND CAYMAN BRANCHES,

as a Lender

 	 
	 	By:  	/s/ Andrew Campbell
 	 
	 	 	Name:  	Andrew Campbell 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	 	 
	 	By:  	                    /s/ Janet Berry
 	 
	 	 	Name:  	Janet Berry 	 
	 	 	Title:  	Assistant Treasurer 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	COMPASS BANK,

as a Lender

 	 
	 	By:  	/s/ Payton K. Swope
 	 
	 	 	Name:  	Payton K. Swope 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	GUARANTY BANK,

as a Lender

 	 
	 	By:  	/s/ Christopher S. Parada
 	 
	 	 	Name:  	Christopher S. Parada 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	RAYMOND JAMES BANK, FSB,

as a Lender

 	 
	 	By:  	/s/ Laurens F. Schaad Jr.
 	 
	 	 	Name:  	Laurens F. Schaad Jr. 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

 HOUSTON AGENCY, as a Lender

 	 
	 	By:  	/s/ John McGhee
 	 
	 	 	Name:  	John McGhee 	 
	 	 	Title:  	Vice President & Manager 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	UNITED OVERSEAS BANK LIMITED,

NEW YORK AGENCY, as a Lender

 	 
	 	By:  	/s/ George Lim
 	 
	 	 	Name:  	George Lim 	 
	 	 	Title:  	SVP & GM 	 
	 
	 	 	 
	 	By:  	                          /s/ Mario Sheng
 	 
	 	 	Name:  	Mario Sheng 	 
	 	 	Title:  	AVP 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 
	 	WELLS FARGO BANK, N.A.,

as a Lender

 	 
	 	By:  	/s/ Charles D. Kirkham
 	 
	 	 	Name:  	Charles D. Kirkham 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Revolving Credit Agreement

(Western Refining, Inc.)