LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH
GUARANTOR (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 GUARANTORS HAVE BEEN INDUCED TO ENTER INTO
THIS GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
29.
ENTIRE AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Remainder of Page Intentionally Blank.
Signature(s) Page to Follow.
Exhibit H - Page 7
Form of Continuing Guaranty
[INSERT GUARANTOR]
Signature Page to Continuing Guaranty
SCHEDULE 1
INITIAL GUARANTORS
Exhibit H - Page 9
Form of Continuing Guaranty
Schedule 1 to Continuing Guaranty
EXHIBIT A
COUNTERPART TO CONTINUING GUARANTY
The Counterpart to Continuing Guaranty is dated as of _________ and is made by
___________ ("Additional Guarantor") in favor of Bank of America, N.A., as
Administrative Agent and the other Guaranteed Parties as defined in the Guaranty
Agreement hereinafter referenced.
All capitalized terms not defined herein
shall have the meaning ascribed to them in the Guaranty hereinafter referenced
or in the Credit Agreement hereinafter referenced.
Recitals
WHEREAS, WESTERN REFINING, INC. (the "Borrower"), Bank of America, N.A., as
administrative agent ("Administrative Agent"), and certain financial
institutions (collectively, the "Lenders") have entered in to that certain
Amended and Restated Term Loan Credit Agreement dated as of ____________ (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the "Credit Agreement"); and
WHEREAS, in connection with the Credit Agreement, certain Subsidiaries of the
Borrower (each a "Guarantor," and, collectively, the "Guarantors") entered into
a Continuing Guaranty agreement (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Guaranty Agreement");
WHEREAS, the Credit Agreement requires Additional Guarantor to become a party to
the Guaranty Agreement; and
WHREAS, Additional Guarantor has agreed to execute and deliver this Counterpart
to Continuing Guaranty in order to become a party to the Guaranty Agreement;
NOW THEREFORE IT IS AGREED:
By executing and delivering this Counterpart to Continuing Guaranty, Additional
Guarantor hereby becomes a party to the Guaranty Agreement as a Guarantor
thereunder with the same force and effect as if originally named therein as a
Guarantor and, without limiting the generality of the foregoing, hereby
expressly assumes all obligations and liabilities of a Guarantor
thereunder.
Additional Guarantor hereby represents and warrants that each of
the representations and warranties contained in the Guaranty Agreement is true
and correct on and as of the date thereof (after giving effect to this
Counterpart