exv10w2



 




Exhibit 10.2





EXECUTION COPY




 





Published CUSIP Number:                     





TERM LOAN CREDIT AGREEMENT




Dated as of May 31, 2007




among




WESTERN REFINING, INC.,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent




and




The Lenders Party Hereto




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
	 	 	22	 
	1.03 Accounting Terms
	 	 	22	 
	1.04 Rounding
	 	 	23	 
	1.05 Times of Day
	 	 	23	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND LOANS
	 	 	23	 
	2.01 Loans
	 	 	23	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	24	 
	2.03 Prepayments
	 	 	25	 
	2.04 Termination or Reduction of Commitments
	 	 	27	 
	2.05 Repayment of Loans
	 	 	27	 
	2.06 Interest and Principal Payments
	 	 	27	 
	2.07 Fees
	 	 	28	 
	2.08 Computation of Interest and Fees
	 	 	28	 
	2.09 Evidence of Debt
	 	 	28	 
	2.10 Payments Generally; Administrative Agent’s Clawback
	 	 	29	 
	2.11 Sharing of Payments by Lenders
	 	 	30	 
	2.12 Security
	 	 	30	 
	2.13 Increase in Commitments
	 	 	30	 
	2.14 Additional Increases in Commitments
	 	 	31	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	33	 
	3.01 Taxes
	 	 	33	 
	3.02 Illegality
	 	 	35	 
	3.03 Inability to Determine Rates
	 	 	35	 
	3.04 Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	35	 
	3.05 Compensation for Losses
	 	 	37	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	37	 
	3.07 Survival
	 	 	38	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO LOANS
	 	 	38	 
	4.01 Conditions to the Initial Advance Loans
	 	 	38	 
	4.02 Conditions to the Delayed Advance Loans
	 	 	41	 
	4.03 Conditions to the Additional Loans Pursuant to Section 2.01(b)
	 	 	42	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	43	 
	5.01 Existence, Qualification and Power; Compliance with Laws
	 	 	43	 
	5.02 Authorization; No Contravention
	 	 	43	 
	5.03 Governmental Authorization; Other Consents
	 	 	43	 
	5.04 Binding Effect
	 	 	43	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	43	 






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	Section
	 	Page	 
	5.06 Litigation
	 	 	44	 
	5.07 No Default
	 	 	44	 
	5.08 Ownership of Property; Liens
	 	 	44	 
	5.09 Environmental Compliance
	 	 	44	 
	5.10 Insurance
	 	 	45	 
	5.11 Taxes
	 	 	45	 
	5.12 ERISA Compliance
	 	 	45	 
	5.13 Subsidiaries; Equity Interests
	 	 	45	 
	5.14 Margin Regulations; Investment Company Act
	 	 	46	 
	5.15 Disclosure
	 	 	46	 
	5.16 Compliance with Laws
	 	 	46	 
	5.17 Intellectual Property; Licenses, etc
	 	 	46	 
	5.18 Solvency
	 	 	46	 
	5.19 Collateral Documents
	 	 	46	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	47	 
	6.01 Financial Statements
	 	 	47	 
	6.02 Certificates; Other Information
	 	 	47	 
	6.03 Notices
	 	 	49	 
	6.04 Payment of Obligations
	 	 	50	 
	6.05 Preservation of Existence, etc
	 	 	50	 
	6.06 Maintenance of Properties
	 	 	50	 
	6.07 Maintenance of Insurance
	 	 	50	 
	6.08 Compliance with Laws and Contractual Obligations
	 	 	52	 
	6.09 Books and Records
	 	 	52	 
	6.10 Inspection Rights; Field Audits
	 	 	52	 
	6.11 Use of Proceeds
	 	 	52	 
	6.12 Guarantors; Additional Security Agreements
	 	 	52	 
	6.13 Prepayment of Giant Subordinated Notes
	 	 	54	 
	6.14 Further Assurances
	 	 	54	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	55	 
	7.01 Liens
	 	 	55	 
	7.02 Investments
	 	 	56	 
	7.03 Indebtedness
	 	 	57	 
	7.04 Fundamental Changes
	 	 	58	 
	7.05 Dispositions
	 	 	59	 
	7.06 Restricted Payments
	 	 	59	 
	7.07 Change in Nature of Business
	 	 	60	 
	7.08 Transactions with Affiliates
	 	 	60	 
	7.09 Burdensome Agreements
	 	 	60	 
	7.10 Use of Proceeds
	 	 	60	 
	7.11 Financial Covenants
	 	 	61	 
	7.12 Capital Expenditures
	 	 	61	 
	7.13 Prepayment of Certain Other Indebtedness
	 	 	61	 
	7.14 Amendments to Revolver Loan Documents
	 	 	61	 
	7.15 Designation of Senior Debt
	 	 	62	 






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	Section
	 	Page	 
	7.16 Giant Subordinated Notes
	 	 	62	 
	7.17 Restrictions on Giant Companies Prior to the Subordinated Debt Prepayment
Date
	 	 	62	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	62	 
	8.01 Events of Default
	 	 	62	 
	8.02 Remedies Upon Event of Default
	 	 	65	 
	8.03 Application of Funds
	 	 	65	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	66	 
	9.01 Appointment and Authority
	 	 	66	 
	9.02 Rights as a Lender
	 	 	66	 
	9.03 Exculpatory Provisions
	 	 	67	 
	9.04 Reliance by Administrative Agent
	 	 	67	 
	9.05 Delegation of Duties
	 	 	68	 
	9.06 Resignation of Administrative Agent
	 	 	68	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	68	 
	9.08 No Other Duties, etc
	 	 	68	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	69	 
	9.10 Collateral and Guaranty Matters
	 	 	69	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	71	 
	10.01 Amendments, etc
	 	 	71	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	72	 
	10.03 No Waiver; Cumulative Remedies
	 	 	74	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	74	 
	10.05 Payments Set Aside
	 	 	75	 
	10.06 Successors and Assigns
	 	 	76	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	78	 
	10.08 Right of Setoff
	 	 	79	 
	10.09 Interest Rate Limitation
	 	 	79	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	80	 
	10.11 Survival of Representations and Warranties
	 	 	80	 
	10.12 Severability
	 	 	80	 
	10.13 Replacement of Lenders
	 	 	80	 
	10.14 Governing Law; Jurisdiction; etc
	 	 	81	 
	10.15 Waiver of Jury Trial
	 	 	82	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	82	 
	10.17 USA Patriot Act Notice
	 	 	82	 
	10.18 OTHER LIENS ON COLLATERAL; TERMS OF INTERCREDITOR AGREEMENT; ETC
	 	 	83	 
	10.19 Designated Indebtedness
	 	 	83	 
	10.20 ENTIRE AGREEMENT
	 	 	83	 






-iii-









 





	 	 	 
	SCHEDULES
	 	 
	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

	 	Loan Notice
	B

	 	Note
	C

	 	Compliance Certificate
	D

	 	Assignment and Assumption
	E

	 	Opinion
	F

	 	[Intentionally Omitted]
	G

	 	Security Agreement
	H

	 	Guaranty
	I

	 	Intercreditor Agreement






-iv-









 





TERM LOAN CREDIT AGREEMENT




     This TERM LOAN 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 and a Lender.



     The Borrower has requested that the Lenders provide a term loan credit facility to the
Borrower, and the Lenders have indicated their willingness to lend 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, on any date of determination, the sum of the Initial
Advance Commitments plus the Delayed Advance Commitments of all the Lenders plus such commitments,
if any, as may be made by Lenders pursuant to Sections 2.13 and 2.14.



     “Agreement” means this Term Loan 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,



 









 





     (a) on any date of determination during the Availability Period, for any Lender



          (i) with respect to the Initial Advance: the “Initial Advance Percentage” (carried out to the
ninth decimal place) specified by the name of such Lender on Schedule 2.01;




          (ii) with respect to the Delayed Advance: the “Delayed Advance Percentage” specified (if any)
(carried out to the ninth decimal place) by 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,
as such amount may be adjusted from time to time in accordance with this Agreement; or




          (iii) with respect to reimbursements pursuant to Section 10.04(c): the proportion
(expressed as a percentage carried out to the ninth decimal point) that the sum of the Outstanding
Amount owed to such Lender plus the amount of such Lender’s Delayed Advance Commitment bears to the
aggregate sum of the Outstanding Amount plus the Delayed Advance Commitments of all the Lenders;
and




     (b) on any date of determination arising after the Availability Period, and with respect to
any determination made (whether during or after the Availability Period), and with respect to
prepayments or payments pursuant to Sections 2.03 or 2.10(a): the proportion
(expressed as a percentage carried out to the ninth decimal place) that the aggregate Outstanding
Amount owed to any Lender bears to the aggregate Outstanding Amounts owed to all Lenders at such
time; provided that, if, on any date of determination, no Outstanding Amounts then
exist, then the Applicable Percentage shall be determined based on the Applicable Percentage of
such Lender most recently in effect, giving effect to any subsequent assignments.



     “Applicable Rate” means, from time to time, with respect to Eurodollar Rate Loans,
1.75%, and with respect to Base Rate Loans, 0.75%.



     “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.



     “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



2









 




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 Period” means the period from and including the Closing Date to the
earliest of (a) the Subordinated Debt Prepayment Deadline, (b) the date that Delayed Advance Loans
in the full amount of the Delayed Advance Commitment have been drawn, (c) the Maturity Date, (d)
the date of termination of the Commitments pursuant to Section 2.04, and (e) 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.



     “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 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 a borrowing 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 this Agreement.



     “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 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;



3









 





     (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.



     “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



4









 




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.



     “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 Lenders, whether under this Agreement or under any other document executed by any such
Person and delivered to the Administrative Agent or the Lenders.



     “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 Lenders, now or hereafter
delivered to the Administrative Agent or the Lenders 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 Lenders,
as secured party, and (b) any amendments, supplements, modifications, renewals, replacements,
consolidations, substitutions and extensions of any of the foregoing.



     “Commitment” means, on any date of determination, as to each Lender, its obligation to
make Loans to the Borrower pursuant to Section 2.01 in an aggregate principal amount at any
one time outstanding not to exceed the sum of such Lender’s Initial Advance Commitment, its Delayed
Advance Commitment and its commitment pursuant to Section 2.13 and/or Section 2.14,
as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.



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



5









 





     “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 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



6









 




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.



     “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.



     “Debt Issuance” means the issuance, incurrence or assumption of Indebtedness by the
Borrower or any of its Subsidiaries on or after the Closing Date, other than Indebtedness permitted
by Section 7.03.



     “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 an interest rate equal to (a) the Base Rate, plus (b) the
Applicable Rate, if any, applicable to Base Rate Loans, plus (c) 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.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
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.



     “Delayed Advance” means the advance of Loans made available to the Borrower by the
Delayed Advance Lenders after the Closing Date pursuant to Section 2.01(a)(ii) in an
aggregate amount, whether made in one or two draws, not to exceed in the aggregate $275,000,000, as
such amount may be adjusted from time to time in accordance with this Agreement.



     “Delayed Advance Commitment” means, as to any Delayed Advance Lender, its obligation
to make Delayed Advance Loans to the Borrower pursuant to Section 2.01(a)(ii) in an
aggregate principal
amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under
the heading entitled “Delayed Advance Commitment” or in the Assignment and Assumption pursuant to



7









 




which such Lender becomes a party hereto as a Delayed Advance Lender, as adjusted from time to time
in accordance with this Agreement.




     “Delayed Advance Date” means each date occurring on or before the Subordinated Debt
Prepayment Deadline on which the Borrower (by delivery of a Loan Notice) requests that a Delayed
Advance Loan be made and on which the conditions precedent set forth in Section 4.02 have
been satisfied or waived in accordance with Section 10.01. Unless otherwise agreed by the
Delayed Advance Lenders, there shall not be more than two Delayed Advance Dates.



     “Delayed Advance Lender” means a Lender that, pursuant to Section 2.01(a)(ii),
is committed to make Loans to the Borrower on a Delayed Advance Date, and any permitted successor
or assignee of such Delayed Advance Lender.



     “Delayed Advance Loans” has the meaning specified in Section 2.01(a)(ii).



     “Delayed Advance Percentage” has the meaning set forth in the definition of
“Applicable Percentage.”



     “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 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)).



     “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



8









 




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) 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 Loan that bears interest at a rate based on the
Eurodollar Rate.



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



9









 





     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of 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 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 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.



     “Extraordinary Receipts” means any cash received by or paid to or for the account of
any Person not in the ordinary course of business, including tax refunds (other than income tax
refunds), pension plan reversions and proceeds of insurance (other than proceeds of business
interruption insurance to the extent such proceeds constitute compensation for lost earnings) and
condemnation awards (and payments in lieu thereof) in respect of property other than Revolver
Priority Collateral, indemnity payments and any purchase price adjustment; provided,
however, that an Extraordinary Receipt shall not include cash receipts from proceeds of insurance,
condemnation awards (or payments in lieu thereof) or indemnity payments to the extent that such
proceeds, awards or payments (a) in respect of loss or damage to equipment, fixed assets or real
property are applied (or in respect of which expenditures were previously incurred) to replace or
repair the equipment, fixed assets or real property in respect of which such proceeds were received
in accordance with the terms of Section 2.03(b)(ii), or (b) are received by any Person in
respect of any third party claim against such Person and applied to pay (or to reimburse such
Person for its prior payment of) such claim and the costs and expenses of such Person with respect
thereto, or (c) constitute proceeds of Revolver Priority Collateral.



     “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.



10









 





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



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



     “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



11









 




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
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 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



12









 




holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.




     “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 Lenders, 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.



     “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;



     (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



13









 





     (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.



     “Initial Advance” means the single advance of Loans made to the Borrower by the
Initial Advance Lenders on the Closing Date pursuant to Section 2.01(a)(i) in an aggregate
amount equal to $1,125,000,000.



     “Initial Advance Loans” has the meaning specified in Section 2.01(a)(i).



     “Initial Advance Commitment” means, as to any Initial Advance Lender, its obligation
to make Loans to the Borrower pursuant to Section 2.01(a)(i) on the Closing Date in an
aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01 under the caption “Initial Advance Commitment.”



     “Initial Advance Lender” means a Lender that, pursuant to Section 2.01(a), is
committed to make Loans to the Borrower on the Closing Date and any permitted successor or assignee
of such Initial Advance Lender.



     “Initial Advance Percentage” has the meaning set forth in the definition of
“Applicable Percentage.”



     “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
Revolver 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, 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:



14









 





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




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




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




     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person 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 Administrative Agent, in form and
substance satisfactory to 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.



     “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.



     “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.



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



     “Loan” has the meaning set forth in Section 2.01.



15









 





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



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



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



     “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 30, 2014.



     “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:



     (a) with respect to any Disposition by the Borrower or any Subsidiary, or an Extraordinary
Receipt received or paid to the account of the Borrower or any Subsidiary, the excess, if any, of
(i) the sum of cash and cash equivalents received in connection with such transaction (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 transaction (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
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; and



16









 





     (b) with respect to any Debt Issuance by the Borrower or any Subsidiary, the excess, if any,
of (i) cash and cash equivalents received in connection with such issuance (including any cash
received by way of deferred payment pursuant, but only as and when so received) over (ii) the
reasonable and customary out-of-pocket expenses incurred by any Loan Party or any Subsidiary in
connection with such issuance.



     “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, whether direct or indirect (including those acquired by assumption), absolute or contingent,
due or to become due, now existing or hereafter arising, 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, on any date, the aggregate outstanding principal amount of
all Loans after giving effect to any borrowings and prepayments or repayments of Loans occurring on
such date.



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



     “PBGC” means the Pension Benefit Guaranty Corporation.



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




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     “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.



     “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.



     “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.



     “Qualifying Acquisition” has the meaning specified in Section 2.14(a).



     “Ratings” means, as of any date of determination, the Borrower’s ratings as determined
by S&P and Moody’s.



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



     “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 after the Closing Date.



     “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.



     “Required Lenders” means, (a) on any date of determination occurring during the
Availability Period, those Lenders holding in the aggregate more than 50% of the sum of the
Outstanding Amount plus the amount of the Delayed Advance Commitment of all Lenders then in effect;
and (b) on any date of determination occurring after the Availability Period, Lenders holding in
the aggregate more than 50% of the Outstanding Amount. The unfunded Commitments of, and the
outstanding Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Lenders.



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



     “Revolver Collateral Documents” means the “Collateral Documents” under, and as defined
in, the Revolving Credit Agreement.



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



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



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



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



     “Revolving Credit Agreement” means that certain Revolving 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.



     “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.



     “Secured” means secured by a Lien.



     “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



19









 







created in favor of the Administrative Agent for the benefit of the Lenders 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 Lenders, as renewed, extended, amended or restated
from time to time.



     “Senior Indebtedness” means Consolidated Total Indebtedness unless, in the instrument
creating or evidencing such Indebtedness, it is provided that such Indebtedness is subordinate to
some or all other Indebtedness of the issuer of such Indebtedness.



     “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 Intercreditor Agreement” means that certain Intercreditor Agreement dated as
of February 9, 2004 between Statoil and the Administrative Agent.



     “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.



     “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, as
further described in and required by Section 6.13.



     “Subordinated Debt Prepayment Deadline” means the date that is 60 days after the
Closing Date.



     “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



20









 







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).



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



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



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



     “Term Loan Collateral Account” means the deposit account or other account maintained
by the Administrative Agent (and subject to the first priority security interest of the
Administrative Agent for the benefit of the Lenders) pursuant to Section 2.03(e) into which
Net Cash Proceeds from sales of Term Priority Collateral and other amounts held by the
Administrative Agent pursuant to this Agreement shall be deposited pending final application of
such proceeds in accordance with the terms of this Agreement. The Term Loan Collateral Account
shall be under the sole dominion and control of the Administrative Agent.



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



     “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.



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



21









 





     “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.



     “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.



     “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.



22









 





          (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 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).



ARTICLE II.

THE COMMITMENTS AND LOANS




     2.01 Loans.



          (a) The Lenders severally agree to make term loans (each a “Loan” and collectively,
the “Loans”) to the Borrower as follows:





     (i) On the Closing Date, each Initial Advance Lender severally agrees to make a
loan to the Borrower in an amount equal to such Lender’s Initial Advance
Commitment, which loan shall be disbursed in a single advance (collectively,
the “Initial Advance Loans”).




     (ii) On each Delayed Advance Date, each Delayed Advance Lender severally agrees
to make loans to the Borrower in an aggregate amount not to exceed such Lender’s
Delayed Advance Commitment, which Loans may be drawn in up to two advances
(collectively, the “Delayed Advance Loans”). On each date that Delayed



23









 






Advance Loans are made, the Borrower shall prepay Loans outstanding on such
date (and pay any additional amounts required pursuant to Section 3.05) to
the extent necessary so that each Lender ratably holds a portion of each Loan in the
proportion that the aggregate Outstanding Amounts owed to such Lender bear to the
aggregate Outstandings Amounts owed to all Lenders at such time.



          (b) Lenders may, but shall not be required to, agree to commit to make additional Loans if
requested by the Borrower pursuant to Section 2.13 or Section 2.14.




          (c) Amounts borrowed under this Section 2.01 which are repaid or prepaid may not be
reborrowed.




     2.02 Borrowings, Conversions and Continuations of Loans.



          (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) one Business Day prior to the requested date of
any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this
Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a
written Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.
Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal
amount of $10,000,000, or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $5,000,000, or a whole multiple of
$1,000,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (A)
whether the Borrower is requesting a Borrowing, a conversion of 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 Loans
to be borrowed, converted or continued, (D) the Type of Loans to be borrowed or to which existing
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 Loan in a Loan Notice or if the Borrower fails
to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be
made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.




          (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 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
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 4.01, with
respect to the Initial Advance, or Section 4.02, with respect to the Delayed Advance, 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




24









 







funds, in each
case in accordance with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower.




          (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 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 Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than twelve (12)
Interest Periods in effect with respect to Loans.




     2.03 Prepayments.



          (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay 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 Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a
principal amount of $10,000,000, or a whole multiple of $1,000,000 in excess thereof; and (iii) any
prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$1,000,000 in excess thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s)
of Loans to be prepaid 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 Loans of the Lenders in accordance with their respective Applicable Percentages.




          (b) Until such time as the Outstanding Amount has been repaid in full, the Outstanding Amount
shall be permanently prepaid in the amounts and upon the occurrence of any of the following events:





     (i) In the event of any Debt Issuance by the Borrower or any of its
Subsidiaries on or after the Closing Date, then concurrently with receipt of Net
Cash Proceeds of such Debt Issuance, the Borrower shall make a prepayment in an
amount equal to 100% of the Net Cash Proceeds of such Debt Issuance.




     (ii) If Net Cash Proceeds of Extraordinary Receipts received on or after the
Closing Date by the Borrower or any of its Subsidiaries exceed during any calendar
year an amount equal to $25,000,000 (the portion of such Net Cash Proceeds that
exceeds $25,000,000 is herein referred to as “Excess Extraordinary
Receipts”), the Borrower shall



25









 






prepay an aggregate principal amount of Loans equal to 100% of Excess Extraordinary Receipts immediately upon receipt thereof by
the Borrower or such Subsidiary; provided, however, that with
respect to any proceeds of insurance or condemnation awards (or payments in lieu
thereof), for so long as no Event of Default shall have occurred and be continuing,
the Borrower or a Subsidiary may reinvest such Extraordinary Receipts in assets used
in the businesses of the Borrower or its Subsidiaries, and in such case any such
Extraordinary Receipts that have not been reinvested within one year from the
receipt thereof by the Borrower or such Subsidiary shall be immediately applied to
the prepayment of the Loans.




     (iii) If Net Cash Proceeds received on or after the Closing Date by the
Borrower or any of its Subsidiaries from one or more Dispositions (other than
Dispositions to the Borrower or to a Subsidiary permitted by Section
7.05(a)(v) or 7.05(a)(vi)) of property other than Revolver Priority
Collateral exceed during any calendar year an aggregate amount equal to $30,000,000
(the portion of such Net Cash Proceeds that exceeds $30,000,000 is herein referred
to as “Excess Disposition Net Cash Proceeds”), the Borrower shall prepay an
aggregate amount of Loans equal to 100% of such Excess Disposition Net Cash Proceeds
immediately upon receipt thereof by the Borrower or a Subsidiary; provided
however that for so long as no Event of Default shall have occurred and be
continuing, the Borrower or a Subsidiary may reinvest such Excess Disposition Net
Cash Proceeds in assets used in the businesses of the Borrower or its Subsidiaries,
and in such case any such Excess Disposition Net Cash Proceeds that have not been
reinvested within one year from the receipt thereof by the Borrower or such
Subsidiary shall be immediately applied to the prepayment of the Loans;



          (c) Each prepayment of Loans required to be made pursuant to subsection (b) of this
Section 2.03 shall be applied ratably to all outstanding Loans and the principal repayment
installments thereof in reverse order of maturity. Within the foregoing parameters, prepayments
shall be applied first to Base Rate Loans and then to Eurodollar Rate Loans.




          (d) If the Borrower is required to make a mandatory prepayment of Eurodollar Rate Loans under
this Section 2.03 at any time that is other than the end of the current Interest Periods,
and provided that no Default shall then exist, the Borrower shall have the right, in lieu of making
such prepayment in full prior to the end of an Interest Period, to instruct the Administrative
Agent to hold such amount on deposit in the Term Loan Collateral Account and to apply such amount
to the prepayment of the applicable Eurodollar Rate Loans at the end of the current Interest
Periods applicable thereto.




          (e) The Term Loan Collateral Account shall be held by the Administrative Agent for the benefit
of the Lenders. The Borrower hereby grants to the Administrative Agent, for the benefit of the
Lenders, a first priority Lien in the Term Loan Collateral 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 Term Loan Collateral Account. The
Administrative Agent may
invest funds in the Term Loan Collateral Account in interest-bearing deposit accounts of the
Administrative Agent (and such account shall pay interest as paid on other similar accounts held by
the Administrative Agent) or in Cash Equivalents. Provided that no Default exists, the Borrower
may direct the investment of funds in the Term Loan Collateral Account in such deposit accounts or
Cash Equivalents. Any interest earned on such deposit accounts or Cash Equivalents will be for the
account of the Borrower, and the Borrower will deposit with the Administrative Agent the amount of
any loss on any such Cash Equivalents to the extent necessary in order that the amount of the
prepayment to be made with the deposited amounts may not be reduced. The Term Loan Collateral
Account shall be under the sole dominion and control of the Administrative Agent.




26









 








     2.04 Termination or Reduction of Commitments.



          (a) Optional. After the Closing Date, the Borrower may, upon notice to the
Administrative Agent, terminate the Delayed Advance Commitments, or from time to time permanently
reduce the Delayed Advance Commitments; provided, that (i) 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, and (ii) 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. The Administrative Agent will
promptly notify the Delayed Advance Lenders of any such notice of termination or reduction of the
Delayed Advance Commitments. Any reduction of the Delayed Advance Commitments shall be applied to
the Delayed Advance Commitment of each Delayed Advance Lender according to its Delayed Advance
Percentage. All fees accrued until the effective date of any termination of the Delayed Advance
Commitments shall be paid on the effective date of such termination.




          (b) Any portion of the Delayed Advance Commitments that remains undisbursed after the last day
of the Availability Period shall be automatically and permanently reduced to zero.




     2.05 Repayment of Loans. The Borrower agrees to repay to the Lenders in quarterly installments of
principal, each of which shall be equal to 0.25% of the principal amount of the Initial Advance
Loans. The first such payment shall be made on September 30, 2007 and each subsequent payment
shall be made thereafter on the last Business Day of each March, June, September and December, with
a final payment due on the Maturity Date in an amount equal to the Outstanding Amount as of such
date. Each time that Delayed Advance Loans are made, the amount of the remaining installments of
principal shall be adjusted so that each such remaining installment is in an amount equal to 0.25%
of the principal amount of all Loans outstanding on the date that the Delayed Advance Loans are
made (including the amount of Delayed Advance Loans made on such date). Each time that additional
Loans are made pursuant to increases in Commitments pursuant to Section 2.13 or
Section 2.14, the amount of the remaining installments of principal shall be adjusted so
that each such remaining installment is in an amount equal to 0.25% of the principal amount of all
Loans outstanding on the date that such additional Loans are made (including the amount of the
additional Loans made on such date).



     2.06 Interest and Principal Payments.



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




27









 








          (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.




     2.07 Fees.



          (a) 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.




          (b) The Borrower shall pay a fee (the “Delayed Advance Commitment Fee”) to the
Administrative Agent, for the account of each Delayed Advance Lender based on each such Lender’s
Delayed Advance Percentage, equal to the product of (x) 75 basis points (0.75%) per annum times (y)
the unused portion of the Delayed Advance Commitment. The Delayed Advance Commitment Fee shall
accrue from the Closing Date to the last day of the Availability Period and shall be payable in
arrears on the last day of the Availability Period.




     2.08 Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base
Rate is determined by Bank of America’s “prime rate” shall be made on 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 2.10(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.




     2.09 Evidence of Debt. The Loans 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 Loans 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.




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     2.10 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 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 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 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 the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender, 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.



29









 





          (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 Loans 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
Loans, and to make payments pursuant to Section 10.04(c) are several and not joint. The
failure of any Lender to make any Loan 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
Loan 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.




     2.11 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
Loans made by it resulting in such Lender’s receiving payment of a proportion of the aggregate
amount of such Loans 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
Loans of the other Lenders, or make such other adjustments as shall be 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 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 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.



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



     2.13 Increase in Commitments.



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          (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 2.16 of the
Revolving 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
2.16 of the Revolving 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.




          (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 (which approval 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 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
2.13, 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 Loans outstanding on the Increase Effective Date (and pay
any additional amounts required pursuant to Section 3.05) to the extent necessary so that
each Lender ratably holds a portion of each Loan in the proportion that the aggregate Outstanding
Amounts owed to such Lender bear to the aggregate Outstandings Amounts owed to all Lenders at such
time.




          (f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.11 or 10.01 to the contrary.




     2.14 Additional Increases in Commitments.



          (a) Increases in Commitments to Finance Qualifying Acquisitions. In addition to the
requests for increases pursuant to Section 2.13, the Borrower may request increases in the
Aggregate




31









 







Commitments pursuant to this Section 2.14. The proceeds of Loans funded pursuant
to such increases shall be used for Qualifying Acquisitions and related transaction costs. As used
in this Agreement, a “Qualifying Acquisition” is an Acquisition that is permissible under
Section 7.02 and with respect to which





     (i) The lines of business of the Person to be acquired, or the line of business
in which the assets to be acquired will be used, shall be a permitted line of
business pursuant to Section 7.07;




     (ii) Prior to consummation of the Acquisition, the Borrower shall have
delivered to the Administrative Agent a certificate of a Responsible Officer (A)
demonstrating compliance with the financial covenants set forth in Section
7.11, and (B) demonstrating that the ratio of Secured Senior Indebtedness to
Consolidated EBITDA does not exceed 2.50 to 1.00, in each case as of the end of the
fiscal quarter immediately preceding the quarter in which the Acquisition is
consummated, calculated on a pro forma basis taking into account the Acquisition
(such pro forma calculations to be done in a manner reasonably satisfactory to the
Administrative Agent;




     (iii) Immediately before consummation of the Acquisition and the funding of the
Loans and after giving effect thereto, no Default exists or would result therefrom;




     (iv) Immediately before consummation of the Acquisition and the funding of the
Loans and after giving effect thereto, (A) the Borrower is in compliance with the
covenants contained in this Agreement and the other Loan Documents, and (B) the
representations and warranties contained in Article V and the other Loan
Documents are true and correct, 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 2.14, 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;




     (v) The Borrower shall have delivered or caused to be delivered Collateral
Documents and legal opinions, documents and other items as required as a result of
such Acquisition pursuant to Section 6.12 substantially contemporaneously
with the consummation of such Acquisition or within such other time period as may be
agreed by the Administrative Agent; and




     (vi) Prior to consummation of the Acquisition, the Borrower shall have
delivered a certificate of a Responsible Officer, certifying as to the matters set
forth in clauses (i) , (iii) and (iv) of this Section 2.14(a).



          (b) Request for Increase. The Borrower may request increases in the Aggregate
Commitments pursuant to this Section 2.14 by giving notice to the Administrative Agent
(which shall promptly notify the Lenders). Any such request for an increase shall be in a minimum
amount of $75,000,000. 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.




          (c) 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.




32









 





          (d) 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 (which approval 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.




          (e) Effective Date and Allocations. If the 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.




          (f) 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 secretary or assistant secretary of such Loan
Party certifying and attaching the resolutions adopted by such Loan Party approving or consenting
to such increase.




The Borrower shall prepay any Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent necessary so that each
Lender ratably holds a portion of each Loan in the proportion that the aggregate Outstanding
Amounts owed to such Lender bear to the aggregate Outstandings Amounts owed to all Lenders at such
time.




          (g) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.10 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 or Lender, 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.




          (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent and each Lender 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 or such
Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect




33









 







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 (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender,
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.



34









 





          (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender 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 or such Lender, 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
or such Lender 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 or
such Lender in the event the Administrative Agent or such Lender is required to repay such refund
to such Governmental Authority. This subsection shall not be construed to require the
Administrative Agent or any Lender 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 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



35









 






or for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement reflected in the Eurodollar Rate);




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, or any Eurodollar Rate Loan made by it, or change the basis of taxation
of payments to such Lender 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




     (iii) impose on any Lender or the London interbank market any other condition,
cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender;


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




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




          (c) Certificates for Reimbursement. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender 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, 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 to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lender’s right to demand such compensation, provided, that the Borrower shall
not be required to compensate a Lender pursuant to 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, notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month
period referred to above shall be extended to include the period of retroactive effect thereof).




          (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




36









 







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 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




37









 







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 LOANS




     4.01 Conditions to the Initial Advance Loans. The effectiveness of this Agreement, and the obligation
of each Initial Advance Lender to fund its Initial Advance Loans, 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) a Guaranty executed by the Borrower and each of the Western Subsidiaries;




     (iv) 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 the Western Subsidiaries which constitutes
Term Priority Collateral, and granting second priority Liens in the Collateral owned
by the Borrower and the Western Subsidiaries which constitutes Revolver 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 Lenders, 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



38









 






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




     (vi) 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;




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




     (viii) 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 such local counsel opinions relating to
the Loan Parties and real estate Collateral as the Administrative Agent may
reasonably request;




     (ix) a certificate of a Responsible Officer of the Borrower as to the matters
set forth below in this clause (ix) (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
Revolving 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) 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 subsection (g) of this
Section); and




     (E) 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 subsection (g) of this Section);



39









 






     (x) 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 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;




     (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), (g) and (h) 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 report from Purvin & Gertz providing an operational and financial
assessment of the Refineries;




     (iv) 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;




     (v) a Loan Notice in accordance with the requirements hereof; and




     (vi) the Ratings as of the Closing Date.



          (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





40









 




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) evidence that the conditions to effectiveness under the Revolving Credit Agreement have
been satisfied or will be satisfied concurrently with the effectiveness of this Agreement;




          (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 representations and warranties of the Borrower and each other Loan Party 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) shall be true and correct on and as of the date of the Initial
Advance, before and after giving effect thereto;




          (h) no Default shall exist or would result from the Initial Advance, or from the application
of the proceeds thereof, provided, however, that 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 subsection
(g) above;




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




          (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); and




          (k) any fees required to be paid on or before the Closing Date shall have been paid.




     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 the Delayed Advance Loans. The obligation of each Delayed Advance Lender to make any Delayed Advanced Loan is subject to
the following conditions precedent:



41









 





          (a) With respect to a Delayed Advance the proceeds of which will be used to redeem Giant 8%
Subordinated Notes, the Administrative Agent shall have received a certificate of a Responsible
Officer dated as of the date (“8% Notice Date”) that the Borrower causes the trustee under
the Giant 8% Subordinated Indenture to give notice of redemption to such holders (the “8%
Redemption Notice”), certifying that as of the 8% Notice Date the matters set forth in
clauses (i) and (ii) below are true and correct; and with respect to a Delayed Advance the proceeds
of which will be used to redeem Giant 11% Subordinated Notes, the Administrative Agent shall have
received a certificate of a Responsible Officer dated as of the date (“11% Notice Date”)
that the Borrower causes the trustee under the Giant 11% Subordinated Indenture to give notice of
redemption to such holders (the “11% Redemption Notice”), certifying that as of the 11%
Notice Date, the matters set forth in clauses (i) and (ii) below are true and correct:





     (i) The representations and warranties of the Borrower and each other Loan
Party contained in Article V or in any other Loan Document, or which are contained
in any document furnished at any time under or in connection herewith or therewith,
are true and correct both before and after giving effect to notice of redemption
being given on such date, 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; and




     (ii) No Default exists or would result from the giving of such notice of or
from the making of such redemption; and



          (b) The Administrative Agent shall have received a Loan Notice in accordance with the
requirements of Section 2.02.




          (c) The conditions precedent to the obligation of the Delayed Advance Lenders to make the
Delayed Advance Loans shall be limited to the conditions precedent set forth in Sections
4.02(a) and (b). For the avoidance of doubt and without limiting the foregoing: the
Borrower shall not be required to certify as to the absence of a Default, and shall not be required
to certify as to the accuracy of representations or warranties, on the date of delivery of a Loan
Notice with respect to Delayed Advance Loans; and the obligation of the Delayed Advance Lenders to
make Delayed Advance Loans shall not be affected by the occurrence or existence of a Default, or by
the inaccuracy of representations or warranties, on the day of funding of the Delayed Advance
Loans, or on any other day after the date of delivery of the certificate required by Section
4.02(a).




     4.03 Conditions to the Additional Loans Pursuant to Section 2.01(b). With respect to those
Lenders that agree pursuant to Section 2.13 or Section 2.14 to make additional
Loans, the obligation of a Lender to make any such Loan 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 Loan, before and after giving effect to such Loan, 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.




42









 








          (b) No Default shall exist or would result from such proposed Loan, or from the application of
the proceeds thereof.




          (c) The Administrative Agent shall have received a Loan Notice in accordance with the
requirements of Section 2.02.




     Each request for a Loan pursuant to Section 2.01(b) submitted by the Borrower shall be
deemed to be a representation and warranty that the conditions specified in Sections
4.03(a) and 4.03(b) have been satisfied on and as of the date of the Loan.



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. 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.



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          (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 listed 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.



     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.



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     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 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 Revolver
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.



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     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, 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.



     5.19 Collateral Documents.



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          (a) The provisions of each of the Collateral Documents are effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable (i) first
priority security interest in all right, title and interest of the Loan Parties in the Term
Priority Collateral described therein, and (ii) second priority security interest (subject only to
the Revolver Priority Liens) in all right, title and interest of the Loan Parties in the Revolver
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 or any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, 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.



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



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




          (h) 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 the Required Lenders 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



48









 




copies) of such documents. Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Compliance Certificates required by
Section 6.02(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 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 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 Section 2.03(b)(iii), (ii) incurrence
or issuance of any Indebtedness for which the Borrower is required to make a mandatory prepayment
pursuant to Section 2.03(b)(i), and (iii) receipt of any Extraordinary Receipt for which
the Borrower is required to make a mandatory prepayment pursuant to Section 2.03(b)(ii);




          (d) the occurrence of any ERISA Event; and




49









 





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




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



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



     6.05 Preservation of Existence, etc. (a) Preserve, renew and maintain in full force and effect 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




50









 




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 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 Term Loan Priority Collateral shall, if so directed by 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 a separate account held by the Administrative
Agent for the benefit of the Lenders (the “Term Loan Casualty Proceeds Account”) or
(iii) deposited into the Term Loan Collateral Account. The Borrower hereby grants to the
Administrative Agent for the benefit of the Lenders, a Lien in the Term Loan 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 Term
Loan Casualty Proceeds Account. The Administrative Agent may invest funds in the Term Loan
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




51









 




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 Term Loan 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.




     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.



          (a) 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.


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




     6.11 Use of Proceeds. Use the proceeds of (a) the Initial Advance Loans, to finance the acquisition of
all of the outstanding common stock of Giant pursuant to the Merger Agreement, for redemption of
the Giant Subordinated Notes, and for transaction expenses related to the foregoing, and (b) the
Delayed Advance Loans, for redemption of the Giant Subordinated Notes and for transaction expenses
related thereto, (c) Loans made pursuant to Commitment increases pursuant to Section 2.13
may be used for general corporate purposes not in contravention of Laws or any Loan Document, and
(d) Loans made pursuant to Commitment increases pursuant to Section 2.14 may be used for
the purposes described in such Section.



     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




52









 




appropriate for such purpose, and (y) deliver to the Administrative Agent such documents of the
types referred to in Sections 4.01(a)(vi) and 4.01(a)(vii) 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.




          (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)(vi) and 4.01(a)(vii) 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 and assets (other than motor vehicles), 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 Revolver 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 Term Priority Collateral, such Liens shall be first priority Liens, and in the case
of Collateral of the type described in the definition of Revolver Priority Collateral, such Liens
shall be second in priority to the Liens of the lenders and agents under the Revolver 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, 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, the Giant Companies shall not be required to Guarantee the Obligations or to grant
Liens to secure the Obligations in any of their respective assets or properties.




53









 





          (f) Notwithstanding anything to the contrary in this Agreement, as long as (i) 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 any
Collateral Documents; and (ii) 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 later of (i) June 30, 2007, and (ii) 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 (a) cause the Giant
Companies to execute a Guaranty in favor of the Administrative Agent Guaranteeing the Obligations,
and (b) deliver or cause the Giant Companies to deliver documentation granting and perfecting first
priority Liens in favor of the Administrative Agent (on behalf of the Lenders) in Term Priority
Collateral owned by the Giant Companies, and second priority Liens in favor of the Administrative
Agent (on behalf of the Lenders) in Revolver Priority Collateral owned by the Giant Companies, in
each case, consistent with the documentation granted on the Closing Date by the Borrower and the
Western Subsidiaries, including, without limitation, (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, 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.




     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) perfect and maintain the
validity, effectiveness and priority of any of the Collateral Documents and the



54









 




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, 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;




55









 





          (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 Revolver 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;




56









 





          (e) Guarantees permitted by Section 7.03;




          (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 Revolver Loan Documents, any replacement revolving
credit facility, and any refinancings, renewals or extensions of all or any part of the foregoing,
provided that (i) the material terms (other than pricing and yield) of such refinancing, renewing,
or extending Indebtedness or replacement revolving credit facility (“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 Indebtedness being refinanced, renewed,
extended or replaced (“Refinanced Indebtedness”); (ii) if such Refinancing Indebtedness
does not contain terms pursuant to which availability thereunder is based on a borrowing base, the
aggregate amount of Indebtedness available under such Refinancing Indebtedness shall not exceed
$800,000,000; (iii) if such Refinancing Indebtedness is secured, no collateral secures the
Refinancing Indebtedness other than collateral that secures the Refinanced Indebtedness; (iv) such
Refinancing Indebtedness (and, if applicable the Liens securing same) do not contravene the
provisions of the Intercreditor Agreement; and (v) 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
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 Error! Reference source not
found.;




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




57









 





          (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 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 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 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.




58









 





     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:




     (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;


provided, however, that (x) any Disposition pursuant to clauses (i) through
(viii) shall be for fair market value and (y) in the case of Dispositions pursuant to
clauses (i), (ii), (iv), (vii) and (viii), the Borrower shall make mandatory prepayments to the
extent required by Section 2.03(b)(iii).




          (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;



59









 






     (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 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 Revolving 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 Loan, 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.



60









 





     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. 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(i).



     7.14 Amendments to Revolver Loan Documents.



     Amend the terms of the Revolver Loan Documents or of documents governing Refinancing
Indebtedness unless the following conditions are met: (1) after giving effect to such amendment,
either the availability of Loans thereunder is tied to a borrowing base formula or, if there is no
such borrowing base, then the aggregate commitments to lend thereunder do not exceed $800,000,000,
(ii) such amendment shall not 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, and (iii) such amendment shall not 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 may be required by the Administrative Agent pursuant to Section
6.13(b), 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 that are permitted by the
Revolving Credit Agreement.




     (ii) No Giant Company will incur or permit to exist any Indebtedness other than
(A) Indebtedness permitted by Section 7.03(a) and 7.03(c), (B) the
loans by the Borrower to Giant permitted by Section 7.17(a)(i), (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) For purposes of Section 7.06 the Giant Companies shall be considered Guarantors,
even though they have not delivered Guaranties.




ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




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



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          (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 (ii) within three days after the
same becomes due, any interest on any Loan 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 Revolving Loan Credit Agreement
shall occur; or



          (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,





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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




     (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



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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 Revolver Priority Collateral (or the Revolving
Administrative Agent) fail to comply with the terms of the Intercreditor Agreement
(with respect to the Revolver 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 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; and



          (c) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders 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 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, 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 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:



     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 and interest) payable to the Lenders (including fees,
charges and



65









 







disbursements of counsel to the respective Lenders 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
interest on the Loans and other Obligations, ratably among the Lenders 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 ratably among the Lenders in proportion to the respective amounts described in this
clause Fourth held by 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.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority.



          (a) Each of the Lenders 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 and the Lenders, 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 hereby irrevocably appoints and authorizes the Administrative
Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and
all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations,
together with such powers and discretion as are reasonably incidental thereto. In this connection,
the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral
Documents, or for exercising any rights and remedies thereunder at the direction of the
Administrative Agent), shall be entitled to the benefits of all provisions of this Article
IX and Article X (including 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.



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     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 or a Lender.



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



     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 that by its terms must
be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless the Administrative Agent shall have received notice
to the contrary from such Lender prior to the making of such Loan. 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.



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     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 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 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 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 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 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.



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender 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 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



68









 







or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent or a Lender 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 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 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 and the
Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their respective agents and counsel
and all other amounts due the Lenders, and the Administrative Agent under Sections 2.07 and
10.04) allowed in such judicial proceeding; and



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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender 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 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 2.07
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 any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.



     9.10 Collateral and Guaranty Matters.



            (a) The Lenders 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
and payment in full of all Obligations (other than contingent indemnification
obligations), (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



69









 






     (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
Lenders subject to the expenses of the Administrative Agent.



          (c) Each Lender authorizes and directs the Administrative Agent to enter into the Collateral
Documents for the benefit of the Lenders, and to enter into the Statoil Intercreditor Agreement at
such time as the Administrative Agent deems necessary or desirable. 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



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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;



          (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
(subject to clause (ii) 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 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 to reduce any fee payable hereunder;



          (e) change Section 2.11 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



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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 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 (ii) 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).



     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 or the Administrative Agent, 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
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 pursuant to
Article II if such Lender 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



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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
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 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 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 and the Administrative Agent 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 and the Administrative
Agent. 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.



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          (e) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic 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, 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 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.



     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), and (ii) all
out-of-pocket expenses incurred by the Administrative Agent or any Lender (including the fees,
charges and disbursements of any counsel for the Administrative Agent or any Lender) 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 hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans.



          (b) Indemnification by the Borrower. The Borrower agrees to indemnify the
Administrative Agent (and any sub-agent thereof), each Lender, 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 the use or proposed
use of the proceeds therefrom, (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



74









 







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), or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), 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 against any Related Party of any of
the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such
capacity. The obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.10(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 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 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, or any Lender, or the Administrative Agent 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 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 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



75









 







the Lenders 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 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 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 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 $1,000,000 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;



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     (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; and




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




     (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 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.



77









 





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



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided,
that such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification described in the
first proviso to Section 10.01 that 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 2.11 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.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and the
Lenders 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



78









 







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 2.13(c) or Section
2.14(d), (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, 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 or any
Lender 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 and the Lenders 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 and each
Lender, and each of their respective Affiliates, is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by Administrative Agent, such
Lender, 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, or
any such Affiliate, irrespective of whether or not Administrative Agent or such Lender or 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 different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of Administrative Agent and each Lender, 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, or their respective Affiliates may
have. Administrative Agent and each Lender 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



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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 Loan, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or
unsatisfied.



     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:



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          (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 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 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 OR ANY LENDER 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



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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 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.




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     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 REVOLVER LOAN DOCUMENTS, WHICH LIENS ON THE TERM 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 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 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.



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     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 Term Loan 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 Term Loan Credit Agreement

(Western Refining, Inc.)




 









 





	 	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	     /s/ Ronald E. McKaig	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Ronald E. McKaig	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 






Signature Page to Term Loan Credit Agreement

(Western Refining, Inc.)