REVOLVING CREDIT AGREEMENT

Exhibit 10.1

EXECUTION COPY

 

Published CUSIP Number:                     

REVOLVING CREDIT AGREEMENT

Dated as of May 31, 2007

among

WESTERN REFINING, INC. ,
as the Borrower,

BANK OF AMERICA, N.A. ,
as Administrative Agent, Swing Line Lender,
and L/C Issuer

and

The Lenders Party Hereto

GENERAL ELECTRIC CAPITAL CORPORATION
and
PNC BANK, NATIONAL ASSOCIATION ,
Co-Syndication Agents

THE BANK OF NOVA SCOTIA
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
Co-Documentation Agents

BANC OF AMERICA SECURITIES LLC ,
as
Sole Lead Arranger and Sole Book Manager

 

TABLE OF CONTENTS

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

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

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

SCHEDULES

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

EXHIBITS

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

REVOLVING CREDIT AGREEMENT

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

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

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

ARTICLE I.

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

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

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

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

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

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

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

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

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

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

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

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

Applicable Rate
								Eurodollar
								Rate
Pricing		Consolidated		Commitment				Letters of
Level		Leverage Ratio		Fee				Credit				Base Rate
1		≤ 1.5			0.25	%			1.25	%			0.25	%
2		> 1.5 but ≤ 2.0			0.30	%			1.375	%			0.375	%
3		> 2.0 but ≤ 3.0			0.35	%			1.50	%			0.50	%
4		> 3.0 but ≤ 3.5			0.375	%			1.75	%			0.75	%
5		> 3.5			0.50	%			2.00	%			1.00	%

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     “ Base Rate Committed Loan ” means a Committed Loan that is a Base Rate Loan.

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

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

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

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

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

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

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

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

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

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

     “ Cash Equivalents ” means

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

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

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

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

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

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

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

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

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

     (a) any “person” or “group” (as such terms are used in Sections  13(d) and 1 4(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than the Existing Owners, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “ option right ”)), directly or indirectly, of 30% or more of (i) the direct or indirect Equity Interests of the Borrower or (ii) the Equity Interests of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);

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

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

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

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

     “ Code ” means the Internal Revenue Code of 1986.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     “ Giant Companies ” means Giant and its Subsidiaries.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     (f) capital leases and Synthetic Lease Obligations;

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

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

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

     “ Indemnified Taxes ” means Taxes other than Excluded Taxes.

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

     “ Information ” has the meaning specified in Section 10.07 .

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

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

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

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

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

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

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

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

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

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

     “ IRS ” means the United States Internal Revenue Service.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     “ Maturity Date ” means May 31, 2012.

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

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

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

     “ Multiemployer Plan ” means any employee benefit plan of the type described in Section 4 001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

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

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

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

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

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

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

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

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

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

     “ PBGC ” means the Pension Benefit Guaranty Corporation.

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

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

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

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

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

     “ Platform ” is defined in Section 6.02 hereof.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      1.03 Accounting Terms .

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

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

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

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

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

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

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

ARTICLE II.

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

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

      2.02 Borrowings, Conversions and Continuations of Committed Loans .

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

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

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

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

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

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

      2.03 Letters of Credit .

     (a)  The Letter of Credit Commitment .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     (c)  Drawings and Reimbursements; Funding of Participations .

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

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

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

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

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

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

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

     (d)  Repayment of Participations .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      2.04 Swing Line Loans .

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

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

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

     (c)  Refinancing of Swing Line Loans .

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

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

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

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

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

     (d)  Repayment of Participations .

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

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

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

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

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

      2.05 Prepayments .

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

     (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided , that (i) such notice must be received by the Swing Line Lender and the Administrative Agent