FIRST AMENDMENT TO GUARANTEE AND
COLLATERAL AGREEMENT
AND REAFFIRMATION AND ASSUMPTION AGREEMENT
This
FIRST AMENDMENT TO GUARANTEE AND COLLATERAL AGREEMENT AND
REAFFIRMATION AND ASSUMPTION AGREEMENT dated as of April 7,
2009 (as amended, supplemented or otherwise modified from time to
time, this “ Agreement ”), is made (a) by
each of Holly Corporation, a Delaware corporation (the “
Company ”), the subsidiaries identified on the
signature pages hereto as Reaffirming Subsidiaries (the “
Reaffirming Subsidiaries ” and, together with the
Company, the “ Reaffirming Parties ”), the
Additional Grantors referred to below, and the Additional Guarantor
referred to below, and (b) in favor of Bank of America, N.A.,
as Administrative Agent (in such capacity and together with its
successors, the “ Administrative Agent ”) for
(i) the banks and other financial institutions or entities
(the “ Lenders ”) from time to time parties to
the Second Amended and Restated Credit Agreement (referred to
below) and (ii) the other Secured Parties (as defined in the
Guarantee and Collateral Agreement referred to below, as amended
hereby). Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to such terms in the Second
Amended and Restated Credit Agreement or, if not defined therein,
in the Guarantee and Collateral Agreement.
WHEREAS,
the Company, the Administrative Agent and the several banks and
other financial institutions or entities from time to time parties
thereto were parties to that certain Credit Agreement, dated as of
July 1, 2004 (as amended prior to the First Restatement
Effective Date, the “ Original Credit Agreement
”);
WHEREAS,
pursuant to the Original Credit Agreement the Company, the
Reaffirming Subsidiaries, the Administrative Agent and other
parties signatory thereto are parties to that certain Guarantee and
Collateral Agreement, dated as of July 1, 2004 (as amended,
supplemented or otherwise modified from time to time, the “
Guarantee and Collateral Agreement ”), pursuant to
which the Reaffirming Subsidiaries have guaranteed the Obligations
(as defined in the Guarantee and Collateral Agreement) and the
Reaffirming Parties have granted a security interest in their
respective Collateral in favor of the Administrative Agent for the
benefit of the Secured Parties;
WHEREAS,
the Company, the several banks and other financial institutions or
entities from time to time parties thereto (the “ First
Restatement Lenders ”), the Administrative Agent, PNC
Bank, National Association and Guaranty Bank, as co-documentation
agents, and Union Bank of California, N.A. and Compass Bank, as
co-syndication agents are parties to the Amended and Restated
Credit Agreement, dated as of March 14, 2008 (as amended,
supplemented or otherwise modified from time to time prior to the
date hereof, the “ Restated Credit Agreement ”),
pursuant to which the First Restatement Lenders made available to
the Company a $175,000,000 revolving credit facility in accordance
with the terms and conditions thereof (the “ First
Restatement Loans ”);
WHEREAS,
concurrently herewith, the Restated Credit Agreement is being
amended and restated (as amended, supplemented or otherwise
modified from time to time, the “ Second Amended and
Restated Credit Agreement ”) in its entirety to, among
other things, repay the First Restatement Loans, increase the
aggregate commitments in the Restated Credit Agreement, and modify
certain other terms applicable to the extensions of credit set
forth therein;
WHEREAS,
in order to implement in the Guarantee and Collateral Agreement the
relevant amendments in the Second Amended and Restated Credit
Agreement, the parties hereto desire to amend the Guarantee and
Collateral Agreement and make certain reaffirmations pursuant to
the terms set forth herein;
WHEREAS,
pursuant to that certain Agreement and Plan of Merger dated as of
June 29, 2007, Navajo Refining Company, L.P., a Delaware
limited partnership (the “ Partnership ”) merged
with and into Navajo Refining Company, L.L.C., a Delaware limited
liability company (the “ Surviving Entity ”),
and the Surviving Entity, as successor to the Partnership by
operation of law, acknowledges that it is bound by the Guarantee
and Collateral Agreement pursuant to which it has guaranteed the
Obligations and granted a security interest in its respective
Collateral in favor of the Administrative Agent for the benefit of
the Secured Parties, and the Surviving Entity is a Reaffirming
Subsidiary hereunder and for the avoidance of doubt does hereby
expressly agree that it is a Guarantor and Grantor for all purposes
of the Guarantee and Collateral Agreement;
WHEREAS,
the Company is designating Roadrunner Pipeline, L.L.C., a Delaware
limited liability company and Holly Trucking, L.L.C., a Delaware
limited liability company (each, an “ Additional
Grantor ”, and collectively, the “ Additional
Grantors ”) as a Restricted Subsidiary and in connection
therewith the Second Amended and Restated Credit Agreement requires
that each Additional Grantor become a party to the Guarantee and
Collateral Agreement;
WHEREAS,
the Company is designating Holly Refining & Marketing —
MidCon, L.L.C., a Delaware limited liability company (the “
Additional Guarantor ”) as a Restricted Subsidiary and
in connection therewith the Additional Guarantor wishes to provide
a Guarantee to the Administrative Agent, for the ratable benefit of
the Secured Parties, for the prompt and complete payment and
performance of the Borrower Obligations and such Guarantee by the
Additional Guarantor will be governed by the terms and conditions
under Section 2 of the Guarantee and Collateral
Agreement;
WHEREAS,
pursuant to Section 6.17 of the Second Amended and Restated
Credit Agreement, immediately upon the occurrence of the Release
Event, the Additional Guarantor will become a Grantor under the
Guarantee and Collateral Agreement;
WHEREAS,
the Reaffirming Parties, the Additional Grantors, and the
Additional Guarantor expect to realize, or have realized,
substantial direct and indirect benefits as a result of the
amendment and restatement of the Restated Credit Agreement becoming
effective and the consummation of the transactions contemplated
thereby; and
WHEREAS,
it is a condition precedent to the effectiveness of the Second
Amended and Restated Credit Agreement that the parties hereto enter
into this Amendment.
NOW,
THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
Amendment and
Reaffirmation
SECTION 1.01.
Amendments .
(a) From
and after the date hereof, all references to the “Credit
Agreement” contained in the Guarantee and Collateral
Agreement shall be deemed to refer to the Second Amended and
Restated Credit Agreement.
(b) Section 1.1
of the Guarantee and Collateral Agreement is hereby amended by
adding the following new definition in proper alphabetical
sequence:
‘“
Attorney Costs ” means all reasonable fees, charges
and disbursements of counsel.”
(c) Section 6.1(d)
of the Guarantee and Collateral Agreement is hereby amended by
deleting the words “Supermajority Lenders” in the
proviso thereof and replacing such words with “Required
Lenders”.
(d) Schedules
5 and 6 of the Guarantee and Collateral Agreement are hereby
deleted in their entirety and replaced with the Schedules 5 and 6
attached under Annex I-A hereto.
SECTION 1.02.
Reaffirmation . Each of the Reaffirming Parties hereby
consents to the amendment and restatement of the Restated Credit
Agreement and each of the transactions contemplated thereby and
hereby, confirms its respective guarantees, pledges, grants of
security interests and other obligations, as applicable, under and
subject to the terms of each of the Security Documents to which it
is party, and agrees that, notwithstanding the effectiveness of any
of the transactions contemplated thereby, such guarantees, pledges,
grants of security interests and other obligations, and the terms
of each of the Security Documents to which it is a party, are not
impaired or affected in any manner whatsoever and shall continue to
be in full force and effect and shall continue to secure all the
Obligations, as amended, increased and/or extended pursuant to the
Second Amended and Restated Credit Agreement.
SECTION 1.03.
Assumption .
(a) By
executing and delivering this Agreement, each of the Additional
Grantors, as provided in Section 8.14 of the Guarantee
and Collateral Agreement, hereby
becomes a party
to the Guarantee and Collateral Agreement as a Grantor thereunder
with the same force and effect as if originally named therein as a
Grantor and, without limiting the generality of the foregoing,
hereby expressly assumes all obligations and liabilities of a
Grantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in Schedules 1,
3 and 4 to the Guarantee and Collateral Agreement.
(b) By
executing and delivering this Agreement, the Additional Guarantor
(i) provides a Guarantee to the Administrative Agent, for the
ratable benefit of the Secured Parties, for the prompt and complete
payment and performance of the Borrower Obligations pursuant to the
terms and conditions set forth in Section 2 of the Guarantee
and Collateral Agreement and, without limiting the generality of
the foregoing, the Additional Guarantor hereby expressly assumes
all obligations and liabilities of a guarantor thereunder; and
(ii) agrees that immediately upon the occurrence of the
Release Date pursuant to the terms of Section 6.17(c) of the
Second Amended and Restated Credit Agreement, the Additional
Guarantor shall
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