Exhibit 10.1

CREDIT AGREEMENT

among

BUCKEYE ENERGY SERVICES LLC and

FARM & HOME OIL COMPANY LLC,

as Borrowers,

and

The Several Lenders
from Time-to-time Parties Hereto,

and

BNP PARIBAS,
as Administrative Agent and as Collateral Agent

and

BNP PARIBAS,
as Lead Arranger

Dated as of May 20, 2008

TABLE OF CONTENTS

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CREDIT AGREEMENT

CREDIT AGREEMENT, dated as of May 20, 2008, among BUCKEYE ENERGY SERVICES LLC, a limited liability company organized under the Laws of Delaware (the “BES Borrower”), FARM & HOME OIL COMPANY LLC, a limited company organized under the Laws of Pennsylvania (the “Parent Borrower”, and, together with the BES Borrower, the “Borrowers”), the several banks and other financial institutions or entities from time-to-time parties to this Agreement (the “Lenders”) and BNP PARIBAS, a bank organized under the Laws of the Republic of France (“BNP Paribas”), as lead arranger, as collateral agent (in such capacity, the “Collateral Agent”) and as administrative agent (together with any successor Administrative Agent appointed pursuant to Section 10.9, in such capacity the “Administrative Agent”).

RECITALS

WHEREAS, the Borrowers desire that from time to time the Lenders make advances and issue or participate in standby and documentary letters of credit; and

WHEREAS, the Lenders are willing to make such advances and issue or participate in such standby and documentary letters of credit, in each case, on the terms and conditions of this Agreement;

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:

SECTION 1.                                DEFINITIONS

1.1                                 Defined Terms.  As used in this Agreement, the following terms shall have the following meanings:

“364-Day Letters of Credit Sub-Limit”: the amount set forth under the heading “364-Day Letters of Credit Sub-Limit” in clause (b)(i) or clause (b)(ii), as applicable, of the definition of “Sub-Limit” in this Section 1.1.

“364-Day Trade Sub-Limit Letter of Credit”: as defined in Section 3.1(b).

“Acceptable Investment Grade Credit Enhancement”: (i) a letter of credit or (ii) a guarantee, credit default swap or other customary credit support, in each case, provided by any Person who is Investment Grade.

“Account”: as defined in Section 9-102 of the New York Uniform Commercial Code.

“Account Control Agreements”: with respect to any Deposit Account, Commodities Account or Securities Account, an account control agreement in form and substance reasonably acceptable to each Grantor and the Collateral Agent.

“Account Debtor”: a Person who is obligated to a Loan Party under an Account Receivable or Exchange Receivable of such Loan Party.

“Account Receivable”: an Account or Payment Intangible of any Loan Party.

“Acquisition”: the purchase of Farm & Home Oil Company, the predecessor-in-interest to Parent Borrower, by Buckeye Energy Holdings LLC, pursuant to the Purchase Agreement, dated as of December 21, 2007, among Buckeye Energy Holdings LLC, Farm & Home Oil Company, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as seller’s representative, and the shareholders of Farm & Home Oil Company.

“Actual Knowledge”: when applied to any Loan Party, the actual knowledge of a Responsible Person of such Loan Party; “Actually Known” or other similar terms shall have correlative meanings.

“Administrative Agent”: as defined in the introductory paragraph of this Agreement.

“Affiliate”: as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of a Person (including, with its correlative meanings, “controlled by” and “under common control with”) means the power, directly or indirectly, either to (a) vote (i) when used with reference to any Loan Party, more than 30% of the securities having ordinary voting power for the election of directors of such Person, and shall be applicable solely with respect to Buckeye Partners, L.P. and its Subsidiaries, and (ii) when used with reference to any Agent or Lender, 10% or more of the securities having ordinary voting power for the election of directors of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

“Agent-Related Person”: as defined in Section 10.3.

“Agents”: the Administrative Agent and the Collateral Agent, and “Agent” means each of them, as the context requires.

 “Aggregate Eligible In the Money Forward Contracts Amount”: the aggregate Marked-to-Market Value of all Eligible Forward Contracts of a Loan Party (on a counterparty by counterparty basis) with a positive value, minus (on a counterparty by counterparty basis), without duplication, the sum of (i) margin consisting of cash and Cash Equivalents held by such Loan Party from any Forward Contract Counterparties thereof plus (ii) any claim of offset or other counterclaim Actually Known to such Loan Party to have been asserted in respect of such Eligible Forward Contract by the Forward Contract Counterparty of such Eligible Forward Contract, which are reasonably expected to be deducted from payment.

“Aggregate Eligible Out of the Money Forward Contracts Amount”: the aggregate Marked-to-Market Value of all Eligible Forward Contracts of a Loan Party (on a counterparty by counterparty basis) with a negative value, plus, without duplication, margin for those Eligible Forward Contracts consisting of cash and Cash Equivalents posted by such Loan Party with any Forward Contract Counterparties thereof.

“Agreement”: this Credit Agreement.

“AML Laws”:  as defined in Section 5.24.

“Applicable Financial Statements”: the most recent monthly financial statements delivered by the Borrowers to the Administrative Agent pursuant to Section 7.1 (the most recent financial statements so delivered, the “Monthly Financials”); provided that, the Borrowers may, in their sole discretion, elect to deliver to the Administrative Agent updated financial statements, dated after the date of the Monthly Financials, in form similar to the Monthly Financials (the “Updated Financials”), which

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such Updated Financials shall be the Applicable Financial Statements until the delivery of the next Monthly Financials.

“Applicable Lending Office”: for each Lender and for each Type of Loan, and/or participation in any Reimbursement Obligation, the lending office of such Lender designated on Schedule 1.0 (or, as the case may be, in the Assignment and Acceptance pursuant to which such Lender became a party hereto) for such Type of Loan and/or participation in any Reimbursement Obligation (or any other lending office from time-to-time notified to the Administrative Agent by such Lender) as the office at which its Loans and/or participation in any Reimbursement Obligation of such Type are to be made and maintained.

“Applicable Margin”: on any date with respect to (a) Eurodollar Loans, a rate per annum equal to 1.375%, (b) Cost of Funds Loans, a rate per annum equal to 1.375% and (c) Base Rate Loans, a rate per annum equal to 0.00%.

“Approved Fund”: (a) with respect to any Lender, any Bank CLO of such Lender, and (b) with respect to any Lender that is a fund that invests in commercial loans and similar extensions of credit, any other fund that invests in commercial loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“Approved Inventory Location”: any pipeline, third-party carrier or storage facility that (i) has acknowledged the Collateral Agent’s Perfected First Lien on the inventory owned by any Loan Party located in or at such pipeline, third party carrier or storage facility pursuant to an acknowledgement substantially in the form of Annex 2 to the Security Agreement, or pursuant to another waiver or acknowledgment having substantially the same effect, (ii) is owned by the same Person as is described in clause (iii) hereof, or (iii) has been notified of, and has been requested to acknowledge, the Perfected First Lien on the inventory owned by any Loan Party located in or at such pipeline, third-party carrier or storage facility, substantially in the form of Annex 2 to the Security Agreement, and, in the case of clause (iii), which has (A) been approved as of the Closing Date and set forth on Schedule 1.1(C) as an Approved Inventory Location or (B) been approved by the Administrative Agent, in its sole discretion, from time to time after the Closing Date.  Schedule 1.1(C) shall be deemed amended to include such Approved Inventory Locations without further action immediately upon the Administrative Agent’s approval.

“Assignee”: as defined in Section 11.7(c).

“Assignment and Acceptance”: as defined in Section 11.7(c).

“Assignment of Claims Act”: the Federal Assignment of Claims Act of 1940 (31 ▇.▇.▇. §▇▇▇▇ et seq.) and any similar state or local laws, together with all rules, regulations or interpretations related thereto.

“Availability”: at any time, an amount equal to the least of (A) the Total Borrowing Base at such time minus the Total Extensions of Credit at such time, (B) the Total Commitment minus the Total Extensions of Credit at such time and (C) the Maximum Amount minus the Total Extensions of Credit at such time.

“Availability Certification”: as defined in Section 6.2(e).

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“Available Commitment”: as to any Lender at any time, an amount equal to the excess, if any, of (i) the amount of such Lender’s Commitment at such time over (ii) such Lender’s Extensions of Credit outstanding at such time.

“Bank CLO”: as to any Lender, any entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and is administered or managed by such Lender or an Affiliate of such Lender.

“Barrel”: forty-two U.S. gallons.

“Base Rate”: for any day, the rate per annum (rounded upward, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (b) the Prime Rate in effect on such day.

“Base Rate Loans”: Loans whose rate of interest is based upon a Base Rate.

“Benefited Lender”: as defined in Section 11.8(a).

“BES Borrower”: as defined in the introductory paragraph of this Agreement.

“BNP Paribas”: as defined in the introductory paragraph of this Agreement.

“Board”: the U.S. Board of Governors of the Federal Reserve System of the United States (or any successor).

“Borrowers”: as defined in the introductory paragraph of this Agreement.

“Borrowing Base”:  on any date, solely with respect to the assets of any Loan Party:

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Any amounts described in categories (i) through (xvii) above which may fall into more than one of such categories shall be counted only once under the category with the highest applicable advance rate percentage, when making the calculation under this definition.  In calculating the Total Borrowing Base for the Loan Parties, the following adjustments shall be made:

(A)                              the aggregate value of those portions of the Borrowing Base of the Loan Parties described in clauses (iv), (viii), (xiii) and (xiv) related to Restricted Tier 2 Counterparties in excess of 25% of the Total Borrowing Base then in effect shall be excluded from the Borrowing Base;

(B)                                the aggregate exposure of the Loan Parties under Eligible Accounts Receivable (including Eligible Unbilled Accounts Receivable), Eligible Exchange Receivables or Eligible Forward Contracts to any type of counterparty or any specific counterparty, if applicable, thereunder in excess of the applicable amount approved under the exposure limit guidelines for the Loan Parties set forth in the Risk Management Policy shall be excluded from the Borrowing Base;

(C)                                the aggregate credit exposure of the Loan Parties to each Tier 1 Counterparty in excess of the applicable limits set forth in Schedule 1.1(A) for such counterparty, if any, shall be excluded from the Borrowing Base;

(D)                               the aggregate credit exposure of the Loan Parties to each Tier 2 Counterparty in excess of the applicable limits equal to the greater of (x) the limits set forth in Schedule 1.1(B) for such counterparty, if any or (y) $400,000 shall be excluded from the Borrowing Base;

(E)                                 the aggregate Borrowing Base of the Loan Parties attributable to the Eligible Short Term Unrealized Forward Gain and the Eligible Medium Term Unrealized Forward Gain in excess of 20% of the Total Borrowing Base then in effect shall be excluded from the Borrowing Base;

(F)                                 each category of the Borrowing Base shall be calculated taking into account (without duplication) any applicable eliminations and reductions related to any asserted offset, Actually Known to the relevant Loan Party, to such asset category that the relevant Loan Party believes, in good faith is reasonably likely to occur;

(G)                                the aggregate exposure of the Loan Parties under Eligible Inventory related to biofuels (excluding ethanol) in excess of 15% of the

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aggregate value of Eligible Inventory included in the Total Borrowing Base then in effect shall be excluded from the Borrowing Base; and

(H)                               the value of the Total Borrowing Base at any time shall be the aggregate value of the Borrowing Base for the Loan Parties as of the applicable Borrowing Base Date.

“Borrowing Base Date”: with respect to the Loan Parties at any time, the most recent date as of which the Loan Parties have based a Borrowing Base Report to be delivered by the Loan Parties pursuant to Section 7.2(c).

“Borrowing Base Report”: a report certified by a Responsible Person of each Loan Party, substantially in the form of Exhibit G, with appropriate insertions and schedules, showing the Total Borrowing Base of the Loan Parties, as of the date set forth therein and the basis on which it was calculated, together with the following supporting information:

(i)                                     for Eligible Cash and Cash Equivalents and Eligible Net Liquidity in Brokerage Accounts, copies of summary account statements, to the extent available, issued by the bank, brokerage and futures accounts where such assets are held, as of the applicable Borrowing Base Date, and for Eligible Net Liquidity in Brokerage Accounts, additional statements for each commodities futures account that account for any (x) discounted face value of any U.S. Treasury Securities held in such account that are zero coupon securities issued by the United States of America and (y) unearned interest on such U.S. Treasury Securities;

(ii)                                  a schedule of each Eligible L/C Backed Account Receivable and each Eligible L/C Backed Unbilled Account Receivable, listing the amount and counterparty under the related Account Receivable and the issuing bank, the applicant, the expiration date, the terms of the auto-renewal provision, if any, and the face value of the related letter of credit (or, if applicable, the maximum value of the related letter of credit after giving effect to any tolerance included therein, and the amount of such tolerance);

(iii)                               a schedule of each Eligible Tier 1 Accounts Receivable, Eligible Tier 2 Accounts Receivable, Eligible Unbilled Tier 1 Accounts Receivable, Eligible Unbilled Tier 2 Accounts Receivable, Eligible Short Term Unrealized Forward Gains and Eligible Medium Term Unrealized Forward Gains, in each case listing the amount, the counterparty, the time outstanding, if applicable, the contra account balance thereof and, if applicable, all margin monies received and/or paid and the details of any related letters of credit;

(iv)                              for Eligible Inventory, (A) a schedule of (1) inventory locations and (2) Market Value and inventory volumes by location and type of Eligible Commodity, net of exchange payable offset, as well as a balancing reconciliation and copies of all documents, agreements, and receipts underlying the information delivered pursuant to this clause (iv); provided that, the Loan Parties shall have ten (10) Business Days at the end of each calendar month to deliver such balancing reconciliation, copies and receipts described above to the Administrative Agent and (B) a listing of all new inventory storage locations where Eligible Inventory has been located since the date of the most recent Borrowing Base Report;

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(v)                                 a schedule of Eligible Exchange Receivables, which shall present the net amount of Eligible Exchange Receivables for each counterparty, together with the contra account balance thereof;

(vi)                              for Eligible Letters of Credit Issued for Commodities Not Yet Received, (i) a calculation demonstrating in reasonable detail the aggregate available and undrawn amount of each such letter of credit minus the amount of any other liabilities then existing which may be satisfied by such Letters of Credit, and (ii) a schedule listing each letter of credit giving rise to Eligible Letters of Credit Issued for Commodities Not Yet Received, together with the name of the applicant, the expiration date of the related letter of credit, and the face value thereof (or, if applicable, the maximum value of such letter of credit after giving effect to any tolerance included therein, and the amount of such tolerance);

(vii)                           a schedule of the First Purchaser Lien Amount, setting forth the holder of each First Purchaser Lien and the aggregate First Purchaser Lien Amount of such holder;

(viii)                        a schedule showing the Excise Tax liability report for the Loan Parties;

(ix)                                a schedule of each Commodity Hedging Agreement listed by counterparty, together with the Marked-to-Market Value of such Commodity Hedging Agreements;

(x)                                   a schedule of each Financial Hedging Agreement listed by counterparty, together with the Marked-to-Market Value of each Financial Hedging Agreement; and

(xi)                                a summary report showing the total amount outstanding under each type of Extension of Credit.

“Borrowing Date”: any Business Day specified (i) in a Borrowing Notice as a date on which a Loan requested by any Borrower is to be made or (ii) in a Letter of Credit Request as a date on which a Letter of Credit requested by any Borrower is to be issued or renewed.

“Borrowing Notice”: as defined in Section 2.4(a).

“Brokerage Account Deducts”: as defined in the definition of “Eligible Net Liquidity in Brokerage Accounts” in this Section 1.1.

“Business”: as defined in Section 5.22(b).

“Business Day”: (i) for all purposes other than as covered by clause (ii) of this definition, a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close, and, (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a Business Day as described in clause (i) of this definition and which is also a day on which dealings in United States Dollar deposits are carried out in the interbank market.

“Capital Stock”: any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, all membership interests in a limited liability company, all partnership interests in a limited partnership, or any and all similar ownership interests in a Person (other

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than a corporation, limited liability company or limited partnership) and any and all warrants, rights or options to purchase any of the foregoing.

“Cash Collateral”: with respect to any Letter of Credit, cash or deposit account balances denominated in United States Dollars that has been pledged to the Collateral Agent for the ratable benefit of the Secured Parties to secure repayment of such Letters of Credit.

“Cash Collateralize”: to deposit in a Controlled Account or to pledge and deposit with or deliver to the Collateral Agent, for the ratable benefit of the Secured Parties, Cash Collateral as collateral for the Obligations pursuant to documentation reasonably satisfactory to the Collateral Agent.

“Cash Equivalents”: (a) securities with maturities of twelve (12) months or less from the date of acquisition or acceptance which are issued or fully guaranteed or insured by the United States, or any agency or instrumentality thereof, (b) bankers’ acceptances, certificates of deposit and eurodollar time deposits with maturities of twelve (12) months or less from the date of acquisition and overnight bank deposits, in each case, of any Lender or of any international or national commercial bank with commercial paper rated, on the day of such purchase, at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by ▇▇▇▇▇’▇, (c) commercial paper, variable rate or auction rate securities, or any other short-term, liquid investment having ratings, on the date of purchase, of at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by ▇▇▇▇▇’▇ and that matures or resets not more than twelve (12) months after the date of acquisition, (d) obligations of any U.S. state or a division, public instrumentality or taxing authority thereof, having on the date of purchase a rating of at least AAA or the equivalent thereof by S&P or at least Aaa or the equivalent thereof by Moody’s, (e) fully collateralized repurchase agreements with a term of not greater than seven (7) days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (b) above, and (f) investments in money market funds, mutual funds or other pooled investment vehicles a majority of whose assets of which are comprised of securities of the types described in clauses (a), (b), (c), (d) or (e) above or that is otherwise reasonably acceptable to the Administrative Agent.

“Cash Management Bank”: BNP Paribas or any other bank from time-to-time designated by the Borrowers as the bank at which any Loan Party maintains any Deposit Account, Commodities Account or Securities Account and which is reasonably acceptable to the Administrative Agent.

“Change of Control”: the occurrence of any of the following events: (a) Buckeye Partners, L.P. shall cease to own and control, of record and beneficially, directly or indirectly, a majority of each class of outstanding voting Capital Stock of each Borrower or (b) each Borrower shall cease to own and control, of record and beneficially, directly or indirectly, 100% of each class of outstanding Capital Stock of each of its Subsidiaries free and clear of all Liens; provided that, this clause (b) shall not prohibit a Borrower from selling, transferring, merging, consolidating, amalgamating, liquidating, winding up or dissolving any Subsidiary to the extent not otherwise prohibited by this Agreement.

“Chapter 11 Debtor”:  as defined in the definition of “Eligible Account Receivable” in this Section 1.1.

“Closing Date”: the date on which the conditions precedent set forth in Section 6.1 shall be satisfied or waived.

“Code”: the Internal Revenue Code of 1986.

“Collateral”: all property and interests in property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.

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“Collateral Agent”: as defined in the introductory paragraph of this Agreement.

 “Commitment”: at any date, as to any Lender, the obligation of such Lender to make Revolving Credit Loans to the Borrowers pursuant to Section 2.1 and to participate in Swing Line Loans, Daylight Overdraft Loans and Letters of Credit in an aggregate principal and/or face amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.0 under the caption “Commitment” or, as the case may be, in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as such amount may be changed from time-to-time in accordance with the terms of this Agreement.  As of the Closing Date, the original aggregate amount of the Commitments is $150,000,000.

“Commitment Fee Rate”: for any day, the rate per annum equal to 0.375%.

“Commitment Percentage”: as to any Lender at any time, the percentage which such Lender’s Commitment then constitutes of the Total Commitment (or, at any time after the Commitments shall have expired or terminated, the percentage which the aggregate principal amount of Revolving Credit Loans made by such Lender plus the amount of the undivided interest of such Lender in any then-outstanding Letters of Credit issued, and Swing Line Loans and Daylight Overdraft Loans made, at that time constitutes of the Total Extensions of Credit at such time).

“Commitment Period”: the period from and including the date hereof to but not including the Termination Date or such earlier date on which the Commitments shall terminate as provided herein.

“Commodity Account”: as defined in Section 9-102 of the New York Uniform Commercial Code.

“Commodity Contract”: (a) any Physical Commodity Contract or (b) any Commodity Hedging Agreement.

“Commodity Hedging Agreement”: (i) any forward commodity contracts, swaps, options, collars, caps, or floor transactions, in each case based on Eligible Commodities and (ii) any other similar transaction (including any option to enter into any of the foregoing) or any combination of the foregoing.

“Commonly Controlled Entity”: an entity, whether or not incorporated, which is under common control with the Borrowers within the meaning of Section 4001 of ERISA or is part of a group which includes the Borrowers and which is treated as a single employer under Section 414(b) or (c) of the Code or, for purposes of the Code, Section 414(m) or (o) of the Code.

“Compliance Certificate”: as defined in Section 7.2(a).

“Conduit Lender”: any special purpose corporation organized and administered by any Lender (or an Affiliate of such Lender) for the purpose of making Loans required to be made by such Lender or of funding such Lender’s participation in any unpaid Reimbursement Obligation and designated as its Conduit Lender by such Lender in a written instrument; provided, that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan or a participation in any unpaid Reimbursement Obligation under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan or participation in any unpaid Reimbursement Obligation, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender; provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Section 4.10, 4.11, 4.16 or 11.6 than the designating Lender would have been entitled to

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receive in respect of the extensions of credit made by such Conduit Lender or (b) be deemed to have any commitment hereunder.

“Confidential Information”: as defined in Section 11.16.

“Consolidated Current Assets”: as of any date of determination, all assets of the Parent Borrower and its Subsidiaries that, in accordance with GAAP, would be classified as current assets on a consolidated balance sheet of the Parent Borrower and its Subsidiaries.

“Consolidated Current Liabilities”: as of any date of determination, all liabilities of the Parent Borrower and its Subsidiaries that, in accordance with GAAP, would be classified as current liabilities on a consolidated balance sheet of the Parent Borrower and its Subsidiaries; provided that, all Loans outstanding hereunder from time-to-time shall be deemed to be Consolidated Current Liabilities.

“Consolidated Leverage Ratio”: as of any date of determination, the ratio (expressed as a decimal) of (a) Consolidated Total Liabilities as of such date (minus any Subordinated Indebtedness up to, but not to exceed, 50.00% of the Consolidated Total Liabilities as of such date) to (b) Consolidated Tangible Net Worth as of such date.

“Consolidated Net Working Capital”: as of any date of determination, (a) (i) Consolidated Current Assets as of such date plus (ii) the aggregate outstanding principal amount of Subordinated Indebtedness included in Consolidated Current Liabilities as of such date (not to exceed an amount equal to 50.00% of Consolidated Current Liabilities as of such date) minus (b) Consolidated Current Liabilities as of such date; provided that, an aggregate amount not exceeding $5,000,000 that is included in Consolidated Current Assets due from Affiliates (who are not Loan Parties) shall be included in the calculation of Consolidated Net Working Capital but only to the extent that such amounts due from Affiliates (who are not Loan Parties) arise under transactions that (A) include terms no less favorable in a material respect to the applicable Borrower than would be obtainable in comparable arm’s- length transactions with a Person that is not an Affiliate of such Borrower and (B) are for goods or services in the ordinary course of business.

“Consolidated Tangible Net Worth”: as of any date of determination, (a) the shareholders’, members’ or partners’ equity as shown on the balance sheet of the Parent Borrower and its Subsidiaries in accordance with GAAP as of such date (including investments in joint ventures) plus (b) the aggregate outstanding principal amount of Subordinated Indebtedness as of such date (not to exceed an amount equal to 50.00% of Consolidated Tangible Net Worth as of such date), minus all goodwill and intangible assets of the Parent Borrower and its Subsidiaries, determined, in each of the clauses (a) and (b) above, on a consolidated basis in accordance with GAAP; provided that, an aggregate amount not exceeding $5,000,000 that is included in the shareholders’, members’ or partners’ equity as shown on the balance sheet of the Parent Borrower and its Subsidiaries due from Affiliates (who are not Loan Parties) shall be included in the calculation of Consolidated Tangible Net Worth but only to the extent, that such amounts due from Affiliates (who are not Loan Parties) arise under transactions that (A) include terms no less favorable in a material respect to the Borrowers than would be obtainable in comparable arm’s length transactions with a Person that is not an Affiliate of the Borrowers or (B) are not for goods or services in the ordinary course of business.

“Consolidated Total Liabilities”: as of any date of determination, all liabilities of the Parent Borrower and its Subsidiaries that, in accordance with GAAP, would be included in determining total liabilities on a consolidated balance sheet of the Parent Borrower and its Subsidiaries as of such date, excluding Indebtedness permitted under Section 8.2(g) incurred with respect to (i) fuel tax liabilities of

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the Loan Parties and (ii) obligations of the Loan Parties under product purchase and/or supply agreements.

“Continuation/Conversion Notice”: as defined in Section 4.3(a).

“Continue”, “Continuation” and “Continued”: the continuation of a Eurodollar Loan or Cost of Funds Loan, as applicable, from one Interest Period to the next Interest Period.

“Contractual Obligation”: 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.

“Controlled Account”: each Pledged Account that is subject to an Account Control Agreement.

“Convert”, “Conversion” and “Converted”: a conversion of Base Rate Loans into Eurodollar Loans or Cost of Funds Loans, a conversion of Eurodollar Loans into Base Rate Loans or Cost of Funds Loans, or a conversion of Cost of Funds Loans into Eurodollar Loans or Base Rate Loans, which may be accompanied by the transfer by a Lender (at its sole discretion) of a Loan from one Applicable Lending Office to another.

 “Cost of Funds”: the rate quoted by the Administrative Agent in New York, New York to a Borrower at or about the time of the making of any Loan as the cost of funds of the Administrative Agent (as determined by the Administrative Agent in the Administrative Agent’s sole discretion) for the relevant Interest Period then applicable to such Loan.

“Cost of Funds Loan”: Loans the rate of interest of which is based upon the Cost of Funds.

“Credit Utilization Summary”: as defined in Section 4.13.

“Cure Deadline”: with respect to any calendar month, the third Business Day following the earlier of (i) the date that is 30 days following the end of the such calendar month and (ii) the date on which financial statements required to be delivered pursuant to Section 7.1(b) with respect to such calendar month have been delivered.

“Daylight Overdraft Lender”: BNP Paribas.

“Daylight Overdraft Loan”:  as defined in Section 2.2(a).

“Daylight Overdraft Loan Sub-Limit”: the amount set forth under the heading “Daylight Overdraft Loan Sub-Limit” in clause (b)(i) or clause (b)(ii), as applicable, of the definition of “Sub-Limit” in this Section 1.1.

“Daylight Overdraft Participation Amount”: as defined in Section 2.6(b).

“Default”: any of the events specified in Section 9.1, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.

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“Delta”: in relation to an option referencing an Eligible Commodity, the change in the option premium under such option for a one unit change in the price of the underlying Eligible Commodity.

“Delta Equivalent Basis”: the method of calculating the quantity of cash (or futures) position in Eligible Commodities that will theoretically hedge an option position against an adverse change in the price of any underlying Eligible Commodities by multiplying the Delta of the option by the relevant contract size or nominal amount.

“Deposit Account”: as defined in Section 9-102 of the New York Uniform Commercial Code.

“Disclosing Party”: as defined in Section 11.16(b).

“Disposition”:  with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof; and the terms “Dispose” and “Disposed of” shall have correlative meanings.

“Dividend Compliance Certificate”: as defined in Section 8.5.

“Eligible Account Receivable”: as of any Borrowing Base Date, an Account Receivable valued at the then-outstanding unpaid balance thereof as of such date as to which the following requirements have been fulfilled:

(a)           such Account Receivable arises from the conduct of the Loan Parties’ energy-related businesses (other than power) in conformity with Section 8.12;

(b)           the relevant Loan Party has lawful and absolute title to such Account Receivable subject only to Permitted Borrowing Base Liens or Liens in favor of the Collateral Agent for the benefit of the Secured Parties under the Loan Documents; provided that, the aggregate amount of all Eligible Accounts Receivable, if any, included in the Borrowing Base that are subject to the Permitted Borrowing Base Liens shall be reduced by the aggregate amount secured by such Permitted Borrowing Base Lien (except that amounts secured by (i) inchoate Liens securing amounts not yet delinquent or with respect to which enforcement proceedings are yet permitted by law or contract to be initiated, (ii) Liens being contested in good faith, by appropriate proceedings, and with respect to which adequate collateral reasonably satisfactory to the Administrative Agent has been provided and (iii) Liens permitted by Section 8.3(i) in excess of the offset rights granted by the applicable Loan Party, shall not be subtracted from Eligible Accounts Receivable);

(c)           such Account Receivable is a valid, legally enforceable obligation of the party who is obligated under such Account Receivable;

(d)           the aggregate amount of all Accounts Receivable included as Eligible Accounts Receivable due from a particular Account Debtor shall be reduced by the amount that is, or which any relevant Loan Party has a reasonable basis to believe may be, subject to any dispute, offset, counterclaim or other claim or defense on the part of such Account Debtor (including (i) the amount, if any, by which the portion of the Aggregate Eligible Out of the Money Forward Contracts Amount specific to such Account Debtor exceeds the portion of the Aggregate Eligible In the Money Forward Contracts Amount specific to such Account Debtor, and (ii) without duplication, any trade payables, accrued liabilities, net exchange payables and offsets specific to

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such Account Debtor, including marked to market losses) or to any claim on the part of the Account Debtor denying payment liability under such Account Receivable; provided, however, that in the event that the amount that is subject to any such dispute, offset, counterclaim or other claim or defense is secured with cash or Cash Equivalent margin or Acceptable Investment Grade Credit Enhancement, such portion secured by such margin or Acceptable Investment Grade Credit Enhancement will not be excluded from eligibility so long as the applicable Loan Party determines it is has a reasonable likelihood of success in such dispute, counterclaim or other claim or defense;

(e)           such Account Receivable is not evidenced by any chattel paper, promissory note or other  instrument unless such chattel paper, promissory note or other  instrument is subject to a Perfected First Lien and delivered to the Collateral Agent for the benefit of the Secured Parties;

(f)            such Account Receivable is subject to a Perfected First Lien, and such Account Receivable is not subject to any Liens other than Perfected First Liens or Permitted Borrowing Base Liens;

(g)           such Account Receivable has been invoiced (if the issuance of such an invoice is a condition precedent to the Account Debtor’s obligation to pay) or payment of the Account Receivable is otherwise due and payable; provided that, such Account Receivable shall qualify as an Eligible Account Receivable only if such Account Receivable is not more than thirty (30) days past due; provided further, that, an “Eligible Account Receivable” shall include any Account Receivable for which an extension of three (3) days or less has been granted by such Loan Party if such Account Receivable has been paid during the period of such extension; provided further, that, an Account Receivable for which the issuance of an invoice is a condition precedent to the Account Debtor’s obligation to pay, but for which an invoice was not issued on or before the applicable Borrowing Base Date, shall be an Eligible Account Receivable if the applicable Loan Party provides evidence reasonably satisfactory to the Administrative Agent that such invoice has been issued before the delivery of the related Borrowing Base Report;

(h)           such Account Receivable complies with all applicable Laws and regulations to which the relevant Loan Party is subject;

(i)            such Account Receivable is reduced by any prepayment or, without duplication, cash margin deposit;

(j)            if the Account Debtor of such Account Receivable is a debtor under Chapter 11 of the United States Bankruptcy Code (a “Chapter 11 Debtor”), then such Account Receivable arose after the commencement of the bankruptcy case (the “Petition Date”) of such Account Debtor or has been assumed by such Account Debtor;

(k)           at the time of the sale giving rise to such Account Receivable, the Account Debtor is not in contractual default on any other obligations to a Loan Party (other than any amounts subject to a good faith dispute under the applicable contract and any Account Debtor that is a Chapter 11 Debtor solely with respect to contractual defaults that occurred prior to the Petition Date of such Account Debtor) and such Loan Party has no other reason to anticipate that any such prior Indebtedness or newly arising Indebtedness of such Account Debtor will not be paid when due;

(l)            the Account Debtor obligated on such Account Receivable (i) has not admitted in writing its inability to pay its debts generally or made a general assignment for the benefit of its

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creditors, (ii) has not instituted or had instituted against it a proceeding seeking to adjudicate it a debtor, bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official of it or for any substantial part of its property, and (iii) has not taken any corporate action to authorize any of the foregoing;

(m)          the Account Debtor of such Account Receivable shall not be a Governmental Authority unless all actions required under any Assignment of Claims Act applicable to such Account Receivable and such Governmental Authority shall have been taken to approve and permit the assignment of rights to payment thereunder or thereon to the Collateral Agent, for the ratable benefit of the Secured Parties, under the Security Documents;

(n)           if the Account Debtor of such Account Receivable is incorporated in, or primarily conducting business in, any jurisdiction outside of the United States, such Account Debtor is approved or deemed approved, in accordance with requirements and procedures set forth in the definitions of “Tier 1 Counterparty” and “Tier 2 Counterparty”, as applicable, in this Section 1.1; and

(o)           such Account Receivable is not otherwise determined, in the sole discretion of the Supermajority Lenders, to be ineligible.

“Eligible Broker”:  as defined in the definition of “Eligible Net Liquidity in Brokerage Accounts” in this Section 1.1.

“Eligible Cash and Cash Equivalents”:  as of any Borrowing Base Date, currency consisting of United States Dollars or Cash Equivalents, in each case, which (i) have been deposited in a Controlled Account with a Cash Management Bank, (ii) is subject to a Perfected First Lien, and (iii) is subject to no other Liens other than Permitted Cash Management Liens.

“Eligible Commodities”: natural gas, natural gas liquids, transmix, ethanol, biofuels,  crude oil, refined petroleum products (including heating oil, diesel, gasoline, kerosene, jet fuel and propane), and any other product or by-product of any of the foregoing, rights to transmit, transport or store any of the foregoing, or, with the consent of the Required Lenders, any other energy commodities that are of the type which are purchased, sold or otherwise traded in physical, futures, forward or over-the-counter markets; provided that, additional commodities may be included as Eligible Commodities under this Agreement from time to time after the Closing Date in accordance with the following procedure: (x) the Borrowers shall deliver a written request to the Administrative Agent for such approval by the Required Lenders of such commodity, which request shall be provided by the Administrative Agent to the Lenders, including, without limitation, if requested by a Lender, through posting on Intralinks or other web site in use to distribute information to the Lenders, or by other electronic mail, or other notice procedure permitted under Section 11.2; and (y) the Required Lenders shall inform the Administrative Agent of such approval in writing (by electronic communication, telecopy or facsimile) within ten (10) Business Days after receipt of notice from the Administrative Agent; provided further that, failure of a Lender to respond to any request for approval within the time period provided for hereby shall be deemed to be approval of such commodity, except in the case of a request by the Borrowers to include power as an Eligible Commodity, in which such case such failure by the Required Lenders shall not be deemed to be approval of power as an Eligible Commodity.  The Administrative Agent may, in its sole discretion, extend such ten (10) Business Day period if the Administrative Agent determines that any commodity requires additional review by the Lenders.  The definition of “Eligible Commodities” in this Section 1.1 shall be deemed amended to include such commodity without further action immediately

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upon the Required Lenders’ approval of such commodity in accordance with the procedure described in this definition.

“Eligible Exchange Receivable”: an Exchange Receivable of a Loan Party with a Tier 1 Counterparty or a Tier 2 Counterparty; provided, however, that the value of an Eligible Exchange Receivable shall be the Market Value as of any Borrowing Base Date of the Eligible Commodities required to be delivered to such Loan Party.

“Eligible Forward Contract”: a Forward Contract of a Loan Party with a Tier 1 Counterparty or a Tier 2 Counterparty which (a) conforms to the Risk Management Policy, (b) is evidenced by a written agreement or a trade confirmation enforceable against the Tier 1 Counterparty or Tier 2 Counterparty thereto, (c) is subject to a Perfected First Lien, subject only to Permitted Borrowing Base Liens, (d) has not been terminated and is not subject to termination by reason of a default or any other termination event thereunder and (e) the Forward Contract Counterparty thereto is not a Governmental Authority unless all actions required under any applicable Assignment of Claims Act, if any, applicable to such Forward Contract and such Governmental Authority shall have been taken to approve and permit the assignment of rights to payment thereunder or thereon to the Collateral Agent, for the ratable benefit of the Secured Parties, under the Security Documents.

“Eligible Hedged Inventory”: as of any Borrowing Base Date, the Market Value of Eligible Inventory which has been Hedged as of such date.

“Eligible Inventory”: as of any Borrowing Base Date, all inventory of a Loan Party consisting of Eligible Commodities valued at the then current Market Value as of such date, and in all instances as to which the following requirements have been fulfilled:

(a)           the inventory is owned by the relevant Loan Party free and clear of all Liens other than Perfected First Liens or Permitted Borrowing Base Liens;

(b)           the inventory has not been identified for deliveries so that one or more buyers may have rights to the inventory that could be superior to the Perfected First Liens, nor shall such inventory have become subject to a customer’s ownership or lien;

(c)           the inventory is (A) in storage on the property of the relevant Loan Party, (B) is in transit under the control and ownership of such Loan Party or is in transit on a water borne vessel chartered, rented, owned or leased by such Loan Party with the 3/3 bills of lading issued to or endorsed to the order of the Collateral Agent for the ratable benefit of the Secured Parties or (C) is in an Approved Inventory Location;

(d)           the inventory is subject to a Perfected First Lien, subject to Permitted Borrowing Base Liens; and

(e)           the inventory has not otherwise been determined, in the sole discretion of the Supermajority Lenders, to be ineligible.

“Eligible L/C Backed Accounts Receivable”: as of any Borrowing Base Date, an Account Receivable from a counterparty to a Commodity Contract whose obligations thereunder are supported by a letter of credit issued by a bank or credit insurer that is Investment Grade which does not terminate earlier than ten (10) days after such date; provided that, if the Administrative Agent shall so request, the issuing bank or credit insurer in respect of such letter of credit shall have been notified of, and the applicable Loan Party shall have used commercially reasonable efforts to cause such issuing bank or

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credit insurer to acknowledge in writing, the Lien of the Administrative Agent on the proceeds of such letter of credit or such issuing bank or credit insurer shall have consented to the assignment of the proceeds of such letter of credit to the Administrative Agent.

“Eligible L/C Backed Unbilled Accounts Receivable”: as of any Borrowing Base Date, an Account Receivable that has not actually been invoiced prior to the applicable Borrowing Base Date, from a counterparty to a Commodity Contract whose obligations thereunder are supported by a letter of credit issued by a bank or credit insurer that is Investment Grade which does not terminate earlier than ten (10) days after such date; provided that, if the Administrative Agent shall so request, the issuing bank or credit insurer in respect of such letter of credit shall have been notified of, and the applicable Loan Party shall have used commercially reasonable efforts to cause such issuing bank or credit insurer to acknowledge in writing, the Lien of the Administrative Agent on the proceeds of such letter of credit or such issuing bank or credit insurer shall have consented to the assignment of the proceeds of such letter of credit to the Administrative Agent.

“Eligible Letters of Credit Issued for Commodities Not Yet Received”: as of any Borrowing Base Date, the aggregate available and undrawn amount of Letters of Credit related to the physical purchase by the relevant Loan Party of Eligible Commodities, which Eligible Commodities have not yet been received by such Loan Party as of such date, minus any other liabilities then existing which may be satisfied by such Letters of Credit for the purchase of the Eligible Commodities as of such date for which title has passed to the relevant Loan Party as of such date but which Eligible Commodities have not yet been received by such Loan Party as of such date.

“Eligible Medium Term Unrealized Forward Gain”: as of any Borrowing Base Date, the Aggregate Eligible In the Money Forward Contracts Amount at such date, minus the absolute value of the Aggregate Eligible Out of the Money Forward Contracts Amount at such date, in each case, for Eligible Forward Contract obligations whose final cash or physical settlement is during the period exceeding six (6) months but no greater than twelve months after such Borrowing Base Date.

“Eligible Net Liquidity in Brokerage Accounts”: as of any Borrowing Base Date, the amount of “net liquidating value” or “net equity” (however designated) in any commodities futures account of a Loan Party as of such date maintained with BNP Paribas, any broker with which a Legacy Account is maintained or a reputable broker reasonably acceptable to the Administrative Agent (each, an “Eligible Broker”) which is subject to (i) a Perfected First Lien, subject only to Permitted Borrowing Base Liens and any customary lien of such Eligible Broker in connection with any indebtedness of such Loan Party to such Eligible Broker solely with respect to such account (including, but not limited to, any right of the Eligible Broker to close out open positions of such Loan Party without prior demand for additional margin and without prior notice) (such amounts in a commodities futures account subject to the liens (other than the Perfected First Lien) and close-out rights set forth in this clause (i), the “Brokerage Account Deducts”), and (ii) an Account Control Agreement (subject to Section 7.17, other than with respect to any Legacy Account) among the Collateral Agent, such Loan Party that owns such account and the Eligible Broker with which such account is maintained.  Eligible Net Liquidity in Brokerage Accounts shall include any discounted face value of any U.S. Treasury Securities held as of such date in such account that are zero coupon securities issued by the United States of America minus any unearned interest on such U.S. Treasury Securities as of such date; provided that, the maturity date thereof is within six months of the relevant Borrowing Base Date; provided, further that, the Eligible Net Liquidity in Brokerage Accounts as calculated pursuant to this definition shall not include any Brokerage Account Deducts.

“Eligible Short Term Unrealized Forward Gain”: as of any Borrowing Base Date, the Aggregate Eligible In the Money Forward Contracts Amount at such date, minus the absolute value of the

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Aggregate Eligible Out of the Money Forward Contracts Amount at such date, in each case, for Eligible Forward Contract obligations whose final cash or physical settlement is during the period ending six (6) months after such Borrowing Base Date.

“Eligible Tier 1 Account Receivable”: at the time of any determination thereof, each Eligible Account Receivable from a Tier 1 Counterparty.

“Eligible Tier 2 Account Receivable”: at the time of any determination thereof, each Eligible Account Receivable from a Tier 2 Counterparty.

“Eligible Unbilled Account Receivable”: as of any Borrowing Base Date, each Account Receivable of a Loan Party which would be an Eligible Account Receivable but for the fact that such Account Receivable has not actually been invoiced prior to such Borrowing Base Date.

“Eligible Unbilled Tier 1 Account Receivable”: at the time of any determination thereof, each Eligible Unbilled Account Receivable from a Tier 1 Counterparty.

“Eligible Unbilled Tier 2 Account Receivable”: at the time of any determination thereof, each Eligible Unbilled Account Receivable from a  Tier 2 Counterparty.

“Eligible Unhedged Inventory”: as of any Borrowing Base Date, the Market Value of Eligible Inventory as of such date which has not been Hedged.

“Environmental Laws”: any and all Laws pertaining to pollution, protection of human health or the environment, remediation of contamination, Hazardous Substances, or workplace health and safety, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 1471 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 through 2629; the Oil Pollution Act, 33 U.S.C. § 2701 et seq.; the Emergency Planning and Community ▇▇▇▇▇-▇▇-▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. § ▇▇▇▇▇ et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f through 300j; and the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.; as such Laws have been amended or supplemented, and the regulations promulgated pursuant thereto, and all related or analogous state or local laws.

“Environmental Permits”: any permit, license, registration, consent, approval and other authorization - and the filing of any notification, report or assessment necessary to maintain authorization - as required under any Environmental Law for the operation of the business of any Loan Party conducted on or from the properties owned or used by any Loan Party.

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

“Eurocurrency Reserve Requirements”:  for any day as applied to a Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as a decimal fraction) of reserve requirements current on such day (including, without limitation, basic, supplemental, marginal and emergency reserves under any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto), as now and from time to time hereafter in effect, dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of such Board) maintained by a member bank of the Federal Reserve System.

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“Eurodollar Base Rate”:  with respect to each day during each Interest Period pertaining to a Eurodollar Loan, the rate per annum determined on the basis of the rate for deposits in United States Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Reuters Reference LIBOR 01 (or any successor page) at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period.  In the event that such rate does not appear on Reuters Reference LIBOR 01 (or otherwise on such screen), the “Eurodollar Base Rate” shall be determined by reference to such other comparable publicly available service for displaying eurodollar rates as may be selected by the Administrative Agent or, in the absence of such availability, by reference to the rate at which the Administrative Agent is offered United States Dollar deposits at or about 11:00 a.m. (New York City time), two (2) Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where its eurodollar and foreign currency and exchange operations are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to the amount of its Eurodollar Loan to be outstanding during such Interest Period.

“Eurodollar Loans”: Loans for which the applicable rate of interest is based upon the Eurodollar Rate.

“Eurodollar Rate”:  with respect to each day during each Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for such day in accordance with the following formula (rounded upwards to the nearest 1/100th of 1%):

“Event of Default”: any of the events specified in Section 9.1 for which any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.

“Exchange Receivable”: to the extent of the non-cash consideration to be received, any right to receive consideration that would be an Account Receivable but for the fact that the consideration to be received by the relevant Loan Party consists in whole or in part of the delivery of Eligible Commodities.

“Excise Taxes”: any amounts which are due and owing to any Governmental Authority with respect to the sale of products (excluding franchise taxes and taxes on net income or capital).

“Excluded Accounts”: the Wind-Up Accounts, the Payroll Account and the Intermediate Investment Account.

“Excluded Taxes”: as defined in Section 4.11(e).

“Executive Order”:  as defined in Section 5.24(a).

“Extensions of Credit”: at any date, as to any Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding plus (b) the amount of such Lender’s participation (to the extent of its Commitment Percentage), in the L/C Obligations then outstanding plus (c) the amount of such Lender’s Commitment Percentage of the aggregate principal amount of Swing Line Loans then outstanding plus (d) the amount of such Lender’s Commitment Percentage of the aggregate principal amount of Daylight Overdraft Loans then outstanding.

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“Federal Funds Effective Rate”: for any day, the rate per annum equal to the weighted average of the interest rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

“FERC”: the U.S. Federal Energy Regulatory Commission.

“Financial Hedging Agreement”: any currency swap, cross-currency rate swap, currency option, interest rate option, interest rate swap, cap or collar agreement or similar arrangement or any other similar transaction (including any option to enter into any of the foregoing) or any combination of the foregoing including, without limitation, any derivative relating to interest rate or currency rate risk, in each case which is not a Commodity Hedging Agreement.

“Financing Lease”: any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee.

“First Purchaser Lien”: a so-called “first purchaser” Lien, as defined in Texas Bus. & Com. Code Section 9.343, comparable Laws of the states of Oklahoma, Kansas, Mississippi, Wyoming or New Mexico, or any other comparable Law of any such jurisdiction or any other applicable jurisdiction.

“First Purchaser Lien Amount”: as of any Borrowing Base Date, in respect of any property of the Loan Parties subject to a First Purchaser Lien, the aggregate amount of the obligations outstanding as of such date giving rise to such First Purchaser Lien as of such date, less any portion of such obligations that are secured or supported by cash, Cash Equivalents or Acceptable Investment Grade Credit Enhancement.

“Fiscal Year”: the fiscal year of any Borrower, which consists of a twelve (12) month period beginning on each July 1 and ending on each June 30.

“Forward Contract”: a Commodity Contract with a delivery date more than two (2) days after the contract is entered into.

“Forward Contract Counterparty”: any counterparty to a Forward Contract of a Loan Party.

“Futures Contract”: a contract for making or taking delivery of Eligible Commodities that is traded on a market-recognized commodity exchange, which contract meets the specification and delivery requirements of commodity futures contracts on such commodity exchange, the value of which shall be reflected in a Commodity Account.

“GAAP”: generally accepted accounting principles in the United States of America in effect from time-to-time.

“Governing Documents”: with respect to (a) a corporation, its articles or certificate of incorporation, continuance or amalgamation and by-laws, (b) a partnership, its certificate of limited partnership or partnership declaration, as applicable, and partnership agreement, (c) a limited liability company, its certificate of formation and operating agreement and (d) any other Person, the other organizational or governing documents of such Person.

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“Governmental Authority”: any nation or government, any state, provincial or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

“Grantors”: any Person executing and delivering a Security Document, or becoming party to a Security Document (by supplement or otherwise), pursuant to this Agreement.

“Guarantee”: the Guarantee to be executed and delivered by the Loan Parties, substantially in the form of Exhibit K.

“Guarantee Obligation”: as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to induce the creation of an obligation for which the guaranteeing person has issued a reimbursement, counterindemnity or similar monetary obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of a third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1)  for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the obligee of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business.  The terms “Guarantee” and “Guaranteed” used as a verb shall have a correlative meaning.  The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrowers in good faith.  Guaranteed Obligation shall not include any performance bonds, surety bonds, appeal bonds or customs bonds required in the ordinary course of business or in connection with the enforcement of rights or claims of any Loan Party or in connection with judgments that do not result in a Default or an Event of Default.

“Guarantors”: any Person executing and delivering the Guarantee, or becoming party to the Guarantee (by supplement or otherwise), pursuant to this Agreement.

“Hazardous Substances”: (a) any hazardous materials, hazardous wastes, hazardous substances, toxic wastes and toxic substances as those or similar terms are defined under any Environmental Laws; (b)  asbestos; (c) PCBs; and (d) any other hazardous, radioactive or toxic substance, material, pollutant or contaminant regulated under any Environmental Law.

“Hedged”:  in relation to Eligible Inventory, if the purchase or sale price thereof has been materially hedged as evidenced by a position report in form and substance reasonably similar to Exhibit J (a “Hedged Inventory and Position Report”) or, if not in the Hedged Inventory and Position Report, as otherwise reasonably acceptable to the Administrative Agent through one or a combination of Commodity Contracts or Futures Contracts entered into or held in accordance with the Risk Management

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Policy for the corresponding volume of physical Eligible Commodities held in Eligible Inventory; provided that, the applicable Loan Parties’ rights under such Commodity Contracts or Futures Contracts and all amounts due or to become due to the relevant Loan Party under or in respect of such Commodity Contracts or Futures Contracts are subject to a Perfected First Lien.

“Hedged Inventory and Position Report”: as defined in the definition of “Hedged” in this Section 1.1.

“Increase Amount”: as defined in Section 4.1(b)(iii).

“Increase and New Lender Agreement”: as defined in Section 4.1(b)(iii).

“Increase Period”: the period from the Syndication Date until (but excluding) the Termination Date.

“Increasing Lender”: as defined in Section 4.1(b)(iii).

“Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money (whether by loan or the issuance and sale of debt securities) or for the deferred purchase price of property or services (other than trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices and not past due for more than ninety (90) days), (b) any other indebtedness of such Person which is evidenced by a note, bond, debenture or similar instrument, (c) all obligations of such Person under Financing Leases or Synthetic Leases, (d) all obligations of such Person in respect of letters of credit, acceptances or similar instruments issued or created for the account of such Person, (e) all liabilities of a third party secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof, (f) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (e) above, and (g) for the purposes of Section 9.1(e) only, all obligations of such Person in respect of Commodity Hedging Agreements and Financial Hedging Agreements.  The amount of any Indebtedness under (x) clause (e) shall be equal to the lesser of (A) the stated amount of the relevant obligations and (B) the fair market value of the property subject to the relevant Lien and (y) clause (g) shall be the net amount, including any net termination payments, required to be paid to a counterparty rather than the notional amount of the applicable Commodity Hedging Agreement or Financial Hedging Agreement.

“Indemnified Liabilities”:  as defined in Section 11.6.

“Indemnitee”:  as defined in Section 11.6.

“Ineligible Transferee”: Persons identified by the Borrowers to the Administrative Agent and the Lenders from time-to-time as Persons to whom no interest in a Loan or a Commitment may be transferred pursuant to Section 11.7 for competitive reasons.

“Insolvency”: with respect to any Multiemployer Plan, the condition that such plan is insolvent within the meaning of Section 4245 of ERISA.

“Insolvent”: pertaining to a condition of Insolvency.

“Intellectual Property”:  as defined in Section 5.9.

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“Interest Payment Date”: (a) with respect to any Base Rate Loan, (i) prior to the Termination Date, the last Business Day of each month and (ii) the Termination Date, (b) as to any Eurodollar Loan having an Interest Period of three months or shorter, the last day of such Interest Period, (c) as to any Cost of Funds Loan having an Interest Period of one day, one week or two weeks, the last Business Day of each month, (d) as to any Cost of Funds Loan having an Interest Period of one month, two months or three months, the last day of such Interest Period, (e) as to any Eurodollar Loan or Cost of Funds Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (f) as to any Loan (other than any Base Rate Loan) the date of any repayment or prepayment made in respect thereof.

“Interest Period”: (a) with respect to any Eurodollar Loan:

(i)       initially, the period commencing on the Borrowing Date or Conversion date, as the case may be, with respect to such Eurodollar Loan and ending one (1), two (2), three (3) or six (6) months thereafter, as selected by the relevant Borrower of such Eurodollar Loan in its Borrowing Notice or Continuation/Conversion Notice, as the case may be, given with respect thereto; and

(ii)      thereafter, each period commencing on the last day of the immediately preceding Interest Period applicable to such Eurodollar Loan and ending one (1), two (2), three (3) or six (6) months thereafter, as irrevocably selected by the relevant Borrower in its Continuation/Conversion Notice to the Administrative Agent not less than three (3) Business Days prior to the last day of the then current Interest Period with respect thereto;

(b)           with respect to any Cost of Funds Loan:

(i)       initially, the period commencing on the Borrowing Date, as the case may be, with respect to such Cost of Funds Loan and ending one (1) day, one (1) or two (2) weeks, or one (1), two (2), three (3) or six (6) months thereafter, as selected by the relevant Borrower in its Borrowing Notice or Continuation/Conversion Notice, as the case may be, given with respect thereto; and

(ii)      thereafter, each period commencing on the last day of the immediately preceding Interest Period applicable to such Cost of Funds Loan and ending one (1) day, one (1) or two (2) weeks, or one (1), two (2), three (3) or six (6) months thereafter, as selected by the relevant Borrower in its Continuation/Conversion Notice to the Administrative Agent;

provided that, with respect any Eurodollar Loan or Cost of Funds Loan:

(A)       if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;

(B)        any Interest Period with respect to any Loan that would otherwise extend beyond the Termination Date, shall end on the Termination Date; and

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(C)        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 applicable calendar month.

“Intermediate Investment Account”: the deposit account no. 2079951076125 (or any successor account established in accordance with the applicable provisions of the Security Agreement and Section 5.16(d) of this Agreement) held at a Cash Management Bank in the name of a Loan Party holding (i) the proceeds of Accounts Receivable relating to Intermediate Investments and credit card purchases of transportation fuels from retail distributors that have received Intermediate Investments and (ii) funds transferred from time to time by a Loan Party to pay operating expenses in the ordinary course; provided that, the oil companies that have provided the Intermediate Investment Advances may have access and withdrawal rights with respect to such account.

“Intermediate Investment Advances”: funds advanced by an oil company to any Loan Party intended to be invested by such Loan Party in one or more retail distributors of transportation fuels to support such distributors’ meeting the oil company’s branding requirements.

“Intermediate Investments”: investments made with the proceeds of Intermediate Investment Advances by any Loan Party in retail distributors of transportation fuels to support such distributors’ meeting the relevant oil company’s branding requirements.

“Investment”: any advance, loan, extension of credit or capital contribution to, investment in, or purchase or acquisition of any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, any Person.

“Investment Grade”: with respect to any Person, the long term senior unsecured non-credit enhanced credit rating or shadow rating of which is BBB- or higher by S&P or Baa3 or higher by ▇▇▇▇▇’▇.

“ISP98”:  as defined in Section 3.1(g).

“Issuing Lenders”: BNP Paribas and each other Lender from time-to-time designated by the Borrowers as an Issuing Lender with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld), each in its capacity as issuer of any Letter of Credit.

“Laws”: collectively, all international, foreign, Federal, state, provincial 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, but if not having the force of law, then in respect of which compliance is customary in the Loan Parties’ industry.

“L/C Fee Payment Date”: with respect to any Letter of Credit outstanding during any month, the fifth Business Day of the immediately following month (or if any such day is not a Business Day, the next succeeding Business Day), or if earlier, the expiration date of the last outstanding Post-Termination LOC.

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“L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate undrawn amount of the then-outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed or converted into a Loan pursuant to Section 3.5(b).

“L/C Participants”: with respect to any Letter of Credit, all of the Lenders other than the Issuing Lender thereof.

“Lead Arranger”: BNP Paribas.

“Legacy Accounts”: subject to Section 7.17, those commodities accounts held by the Loan Parties as set forth on Schedule 1.1(E).

“Lenders”: as defined in the introductory paragraph to this Agreement and, as the context requires, includes, the Issuing Lenders, the Daylight Overdraft Lender and the Swing Line Lender.  As of the Closing Date, each Lender is specified on Schedule 1.0.

“Letter of Credit Request”: a request by a Borrower for a new Letter of Credit or an amendment to an existing Letter of Credit, in each case pursuant to Section 3.2 and substantially in the form of Annex I-B or other form reasonably satisfactory to the applicable Issuing Lender and the Administrative Agent.

“Letters of Credit”: as defined in Section 3.1(a).

“Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any Financing Lease having substantially the same economic effect as any of the foregoing); provided that, neither  (a) any interest or title of a lessor under any leases or subleases entered into by the Loan Parties in the ordinary course of business nor (b) licenses, sub-licenses, leases or sub-leases granted to third parties in the ordinary course of business consistent with past practices shall be Liens hereunder.

“Loan”: any loan made pursuant to this Agreement.

“Loan Documents”: this Agreement, the Notes, Letter of Credit Requests, the Perfection Certificate, the Guarantee and the Security Documents.

“Loan Parties”: each of the Borrowers and each Subsidiary of a Borrower that is party to a Loan Document.

“Long Position”:  the aggregate quantity measured in Barrels of Eligible Commodities attributable to the Loan Parties resulting from the following long positions:

(a)           all inventory of a Loan Party in respect of Eligible Commodities;

(b)           all imbalances (whether in storage or in pipelines or otherwise) of Eligible Commodities due to each Loan Party;

(c)           all Physical Commodity Contracts of each Loan Party for the purchase or positive exchange of Eligible Commodities;

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(e)           all Futures Contracts of each Loan Party for the purchase of Eligible Commodities;

(f)            all options under a Commodity Hedging Agreement or a Financial Hedging Agreement of each Loan Party, in each case calculated on a Delta Equivalent Basis, that equates to a contracted purchase by the relevant Loan Party of Eligible Commodities (regardless if financially settled); and

(g)           all Commodity Hedging Agreements where a Loan Party is a fixed price purchaser;

provided that, solely with respect to the definition of “Long Position” in this Section 1.1, Eligible Commodities shall include any other commodities permitted under the Risk Management Policy (including the use of Eligible Commodities as a component of the definition of any other term used in the definition of Long Position).

“Marked-to-Market Report”: a comprehensive marked-to-market report of the Loan Parties’ Eligible Commodities purchase and sale positions as evidenced by a position report in form and substance reasonably similar to Exhibit O.  Such report shall include all existing positions for all current and future time periods and cover all contracts that create either an obligation or a right under a Commodity Contract and/or that generate price exposure for any Eligible Commodities and shall include Marked-to Market Value for each position considered.  The contracts shall include but not be limited to contracts for spot and future deliveries of Eligible Commodities, exchanges, derivatives (including Physical Commodity Contracts, Commodity Hedging Agreements and Financial Hedging Agreements) and Futures Contracts; provided that, solely with respect to the definition of “Marked-to-Market Report” in this Section 1.1, Eligible Commodities shall include any other commodities permitted under the Risk Management Policy (including the use of Eligible Commodities as a component of the definition of any other term used in the definition of Marked-to-Market Report).

“Marked-to-Market Value”: with respect to any Commodity Contract of any Person on any date:

(a)           in the case of a Commodity Contract for the purchase, sale, transfer or exchange of any physical Eligible Commodities, the unrealized gain or loss on such Commodity Contract, determined by comparing (i) the amount to be paid or received under such Commodity Contract for such Eligible Commodities pursuant to the terms thereof to (ii) the Market Value of such Eligible Commodities on such date, and

(b)           in the case of any other Commodity Contract, the unrealized gain or loss on such Commodity Contract determined by calculating the amount to be paid or received under such other Commodity Contract pursuant to the terms thereof as if the cash settlement of such other Commodity Contract were to be calculated on such date of determination by reference to the Market Value of the Eligible Commodities which is the subject of such other Commodity Contract;

provided, that (i) in the case of any Commodity Contract that is, in whole or in part, an option by its terms, the amount so calculated shall reflect industry standard valuation models approved by the Administrative Agent and (ii) in the case of amounts due under any Forward Contract with a delivery date more than one year from the date of determination, each such amount shall be discounted to present value in a commercially reasonable manner unless otherwise discounted as part of the calculation referred to above.

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“Market Value”: with respect to an Eligible Commodity on any date, the price at which such Eligible Commodities could be purchased or sold for delivery on that date or during the applicable period adjusted to reflect the specifications thereof and the location and transportation differential, determined by using prices (a) on the New York Mercantile Exchange, the COMEX, the London Metal Exchange, the New York Board of Trade, the International Petroleum Exchange, the Intercontinental Commodities Exchange, the Chicago Board of Trade, the Chicago Mercantile Exchange or, if a price for any such Eligible Commodities (or delivery period or location) is not available on such exchanges, such other markets or exchanges recognized as such in the commodities trading industry, including over-the-counter markets and private quotations, or as published in an independent industry recognized source, in each case reasonably selected by the Loan Parties, (b) if such a price for any such Eligible Commodities is not available in any market or exchange described in clause (a) above, any other exchange or market reasonably selected by the Loan Parties and reasonably satisfactory to the Administrative Agent on such date or (c) if such a price for any such Eligible Commodities is not available in any market or exchange described in clauses (a) or (b) above, such other value determined pursuant to methodology reasonably selected by the Loan Parties and reasonably satisfactory to the Administrative Agent.

“Material Adverse Effect”: a material adverse effect on (a) the business, assets, property, operations or condition (financial or otherwise) of the Borrowers and their respective Subsidiaries, taken as a whole or (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the Agents or the Lenders hereunder or thereunder.

“Materials of Environmental Concern”: any gasoline or petroleum (including crude oil or any fraction thereof) or any pollutant, contaminant, dangerous good, Hazardous Substances, toxic substances, materials or wastes, defined or regulated as such in or under, or which form the basis of liability under, any Environmental Law(s) or Environmental Permit, including, without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation, medical waste, mold, microbial matters, radioactive materials and electromagnetic fields.

“Maximum Amount”: on any date of determination, the lesser of (i) $250,000,000 and (ii) the Maximum Sub-Limit in effect on such date.

“Maximum Consolidated Leverage Ratio”:  (a) from the Closing Date until the date the first election is made by the Borrowers pursuant to clause (a)(ii) of the definition of “Sub-Limit” in this Section 1.1, 7.00:1.00, and (b) thereafter, at any time that the Maximum Sub-Limit is an amount specified in the table in clause (a)(ii) of the definition of “Sub-Limit”, the amount set forth opposite such Maximum Sub-Limit in such table under the heading “Maximum Consolidated Leverage Ratio”.

“Maximum Position Limits”: the limits set forth below opposite the then-current Maximum Sub-Limit as the maximum position (defined as the maximum quantities, in Barrels, which, at a fixed price, the Loan Parties hold either as a Net Long Position, Net Short Position or Net Basis Position, all such positions including, without limitation, options on a Delta Equivalent Basis), which the Loan Parties may hold at any time on an aggregate basis, irrespective of whether financed hereunder or otherwise:

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; provided that, notwithstanding the Maximum Position Limits set forth above, the initial Net Long Position, Net Short Position and Net Basis Position of the Loan Parties with respect to natural gas shall not exceed zero unless (x) the Borrowers have delivered a written request to the Administrative Agent for such approval by the Required Lenders to increase the initial Maximum Position Limits for natural gas to specified levels, which request shall be provided by the Administrative Agent to the Lenders, including, without limitation, if requested by a Lender, through posting on Intralinks or other web site in use to distribute information to the Lenders, or by other electronic mail, or other notice procedure permitted under Section 11.2; and (y) the Required Lenders shall inform the Administrative Agent of such approval in writing (by electronic communication, telecopy or facsimile) within ten (10) Business Days after receipt of notice from the Administrative Agent; provided further that, failure of a Lender to respond to any request for approval within the time period provided for hereby shall be deemed to be approval of such request; provided further that, solely with respect to the definition of “Maximum Position Limits” in this Section 1.1, Eligible Commodities shall include any other commodities permitted under the Risk Management Policy.

“Maximum Sub-Limit”: the amount set forth under the heading “Maximum Sub-Limit” in clause (a)(i) or clause (a)(ii), as applicable, of the definition of “Sub-Limit” in this Section 1.1; provided that, the Maximum Sub-Limit shall at no time be an amount less than $150,000,000 or greater than $250,000,000.

“Minimum Consolidated Net Working Capital Amount”:  (a) from the Closing Date until the date the first election is made by the Borrowers pursuant to clause (a)(ii) of the definition of “Sub-Limit” in this Section 1.1, $30,000,000, and (b) thereafter, at any time that the Maximum Sub-Limit is an amount specified in the table in clause (a)(ii) of the definition of “Sub-Limit” in this Section 1.1, the amount set forth opposite such Maximum Sub-Limit in such table under the heading “Minimum Consolidated Net Working Capital”.

“Minimum Consolidated Tangible Net Worth Amount”: (a) from the Closing Date until the date the first election is made by the Borrowers pursuant to clause (a)(ii) of the definition of “Maximum Sub-Limit” in this Section 1.1, $40,000,000, and (b) thereafter, at any time that the Maximum Sub-Limit is an amount specified in the table in clause (a)(ii) of the definition of “Sub-Limit” in this Section 1.1, the amount set forth opposite such Maximum Sub-Limit in such table under the heading “Minimum Consolidated Tangible Net Worth”.

“Monthly Financials”: as defined in the definition of “Applicable Financial Statements” in this Section 1.1.

“Moody’s”: ▇▇▇▇▇’▇ Investors Service, Inc., or any successor to its rating agency business.

“Multiemployer Plan”: a Plan which is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA and which is subject to Title IV of ERISA.

“Net Basis Position”:  the aggregate net quantity of Eligible Commodities, measured in Barrels, purchased or sold under Commodity Contracts of an Eligible Commodity that is Hedged by a sale or purchase under a Commodity Contract at a different delivery location, for delivery during a

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different time period, or for different grades of the same Eligible Commodity, less the hedging impact from any storage and/or transportation contract; provided that, solely with respect to the definition of “Net Basis Position” in this Section 1.1, Eligible Commodities shall include any other commodities permitted under the Risk Management Policy (including the use of Eligible Commodities as a component of the definition of any other term used in the definition of Net Basis Position).

“Net Long Position”:  at any time, the amount (but not less than zero) by which Long Positions exceed Short Positions.

“Net Short Position”:  at any time, the amount (but not less than zero) by which Short Positions exceed Long Positions.

“New Lenders”: as defined in Section 4.1(b)(iii).

“Non-Excluded Taxes”: as defined in Section 4.11(a).

“Non-Exempt Lender”: as defined in Section 4.11(e).

“Note” and “Notes”: as defined in Section 4.5(e).

“Notice of Prepayment”: as defined in Section 4.6.

“Obligations”: the unpaid principal amount of, and interest (including, without limitation, interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrowers, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) on the Loans and Reimbursement Obligations, and all other obligations and liabilities of the Loan Parties to the Secured Parties, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, or out of or in connection with this Agreement, the Notes, the Security Documents, any other Loan Documents, any Letter of Credit, any Commodity Hedging Agreement with a Qualified Counterparty, any Financial Hedging Agreement with a Qualified Counterparty and any other document made, delivered or given in connection therewith or herewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees and disbursements of counsel to the Agents or to the Lenders that are required to be paid by a Loan Party pursuant to the terms of the Loan Documents) or otherwise; provided that, (i) obligations of any Borrower or any Subsidiary under any Commodity Hedging Agreement to a Qualified Counterparty or Financial Hedging Agreement to a Qualified Counterparty shall be secured and guaranteed pursuant to the Security Documents and the Guarantee only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under any Commodity Hedging Agreement or Financial Hedging Agreement.

“OFAC”:  as defined in Section 5.24.

“Other Taxes”: as defined in Section 4.11(b).

“Parent Borrower”: as defined in the introductory paragraph of this Agreement.

“Parent Subordinated Indebtedness”: Subordinated Indebtedness of the Borrowers or any of their Subsidiaries owing to Buckeye Partners, L.P. or any of its Subsidiaries that are not Loan Parties.

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“Participant” and “Participants”: as defined in Section 11.7(b).

“Participation”: as defined in Section 11.7(b).

“Payment Intangible”: as defined in Section 9-102 of the New York Uniform Commercial Code.

“Payroll Account”: the demand deposit account no. 2000037555542 held in the name of the Parent Borrower at Wachovia Bank, N.A. (or any successor account established in accordance with the applicable provisions of the Security Agreement and Section 5.16(d) of this Agreement).

“PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.

“Perfected First Lien”: any perfected, first priority Lien or security interest (or its substantial equivalent under applicable Laws) granted by a Loan Party pursuant to a Security Document in favor of the Collateral Agent, for the ratable benefit of the Secured Parties; provided that, in the case of inventory that is not located in the United States or contracts, Accounts Receivable or Payment Intangibles not governed by Laws of the United States of America or any state or political subdivision thereof, the validity and priority of such Lien shall be confirmed by an opinion of special local counsel, the form and substance of which shall be reasonably satisfactory to the Administrative Agent.

“Perfection Certificate”: the Perfection Certificate to be executed and delivered by the Loan Parties, substantially in the form of Exhibit P.

“Performance Letter of Credit”: a standby Letter of Credit issued to support bonding, performance, swap, transportation and tariff requirements relating to Eligible Commodities (other than the obligation to pay for the purchase of Eligible Commodities).

“Permitted Borrowing Base Liens”: collectively, (i) First Purchaser Liens, (ii) Permitted Cash Management Liens, (iii) Liens permitted under Section 8.3(k) which have been appealed and which have been bonded or fully covered by insurance which coverage has been acknowledged in writing, in each case, by institutions reasonably acceptable to the Administrative Agent within sixty (60) days from the entry of such judgments or decrees, (iv) Liens of carriers, warehousemen, mechanics, materialmen, and any similar Lien arising by operation of law securing obligations to pay or provide consideration for goods or services with respect to Eligible Commodities, which obligations are not past due, (v) inchoate tax liens and (vi) Liens permitted under Section 8.3(i).

“Permitted Cash Management Liens”:  Liens with respect to (i) all amounts due to the Cash Management Banks in respect of customary fees and expenses for the routine maintenance and operation of each Excluded Account or Pledged Account, (ii) the face amount of any checks which have been credited to any Excluded Account or Pledged Account, but are subsequently returned unpaid because of uncollected or insufficient funds, (iii) other returned items or mistakes made in crediting any Excluded Account or Pledged Account, (iv) any currency, Cash Equivalents, commodities or Commodities Contracts deposited in, or credited to, any Excluded Account or Pledged Account which are specifically permitted by the account documentation (including any Account Control Agreement) of such Excluded Account or Pledged Account and (v) any Excluded Account or Pledged Account which arise by operation of law.

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“Permitted Equity Contribution”: any purchase by Buckeye Energy Holdings LLC of any common units of Capital Stock issued by any Loan Party that is the direct Subsidiary of Buckeye Energy Holdings LLC in exchange for cash.

“Permitted Liens”: any of the Liens described in clauses (a) through (n) of Section 8.3.

“Person”: an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

“Petition Date”:  as defined in paragraph (j) the definition of “Eligible Account Receivable” in this Section 1.1.

“Physical Commodity Contract”:  a contract for the purchase, sale, transfer or exchange of any physical Eligible Commodity.

“Plan”: at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Borrowers or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Pledge Agreement”: the Pledge Agreement to be executed and delivered by the Loan Parties party thereto, substantially in the form of Exhibit C.

“Pledged Account”: all Commodity Accounts, Deposit Accounts and Securities Accounts of any Grantor, other than Excluded Accounts.

“Pledged Collateral”:  as defined in the Pledge Agreement.

“Post-Termination LOC”: as defined in Section 3.1(e).

“Prime Rate”: for any day, a rate per annum that is equal to the corporate base rate of interest established by the Administrative Agent from time-to-time and, if requested, provided to the relevant Borrower prior to the delivery of the relevant Borrowing Notice.  The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually available.

“Properties”: as defined in Section 5.22(a).

“Qualified Counterparty”: any counterparty to any Financial Hedging Agreement or Commodity Hedging Agreement entered into between a Loan Party and a Person which, at the time such Financial Hedging Agreement or Commodity Hedging Agreement was entered into, was a Lender or an Affiliate of a Lender.

“Refunded Daylight Overdraft Loan”: as defined in Section 2.6(a).

“Refunded Swing Line Loan”: as defined in Section 2.5.

“Register”: as defined in Section 11.7(d).

“Regulation U”: Regulation U of the Board.

“Reimbursement Date”: as defined in Section 3.4(c).

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“Reimbursement Obligations”: the obligation of the Borrowers to reimburse any Issuing Lender, pursuant to Section 3.5(a) for Unreimbursed Amounts.

“Reorganization”: with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.

“Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty (30) day notice period is waived under PBGC Reg. § 4043.

“Representatives”: as defined in Section 11.16.

“Requested Increase Amount”: as defined in Section 4.1(b)(i).

“Requested Increase Effective Date”: as defined in Section 4.1(b)(i).

“Required Lenders”: at any time, Lenders holding more than 50.00% of either (i) the Total Commitments, or (ii) if the Commitments have been terminated, the Total Extensions of Credit then outstanding.

“Requirement of Law”: as to any Person, any Law or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“Responsible Person”: with respect to any Loan Party, the chief executive officer, president, chairman, senior vice-president, executive vice-president, vice-president of finance or treasurer of such Loan Party; provided that, with respect to any Borrowing Base Report, “Responsible Person” shall include any vice president responsible for the oversight of the trading and financial operations of such Loan Party.

“Restricted Tier 2 Counterparty”: as defined in the definition of “Tier 2 Counterparty” in this Section 1.1.

“Revolving Credit Loans”:  as defined in Section 2.1(a).

“Risk Management Policy”: the risk management policy of the Loan Parties applicable to the funding activities of the Loan Parties as approved by the Board of Directors of the Parent Borrower  and as in effect as of the date hereof, and as the same may be modified in accordance with Section 7.10(a).

“Section 4.11 Certificate”: as defined in Section 4.11.

“Secured Parties”: the Lenders, the Issuing Lenders, the Administrative Agent and the other Agents, Qualified Counterparties and their respective successors, endorsees, transferees and assigns.

“Securities Account”: as defined in Section 8-501 of the New York Uniform Commercial Code.

“Security Agreement”: the Security Agreement to be executed and delivered by the Loan Parties, substantially in the form of Exhibit B.

“Security Documents”: the collective reference to the Account Control Agreements, the Pledge Agreement, the Security Agreement, and all other security documents hereafter delivered to the

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Collateral Agent granting a Lien on any asset or assets of any Person to secure any of the Obligations or to secure any guarantee of any such Obligations.

“Short Position”: the aggregate quantity measured in Barrels of Eligible Commodities attributable to the Loan Parties resulting from the following short positions:

(a)           all imbalances (whether in storage or in pipelines or otherwise) of Eligible Commodities due from each Loan Party;

(b)           all Physical Commodity Contracts of each Loan Party for the sale or negative exchange of Eligible Commodities;

(c)           all Futures Contracts of each Loan Party for the sale of Eligible Commodities;

(d)           all options under a Commodity Hedging Agreement or a Financial Hedging Agreement of each Loan Party, in each case calculated on a Delta Equivalent Basis, that equates to a contracted sale by the relevant Loan Party of Eligible Commodities (regardless if financially settled); and

(e)           all Commodity Hedging Agreements where a Loan Party is the fixed price seller;

provided that, solely with respect to the definition of “Short Position” in this Section 1.1, Eligible Commodities shall include any other commodities permitted under the Risk Management Policy (including the use of Eligible Commodities as a component of the definition of any other term used in the definition of Short Position).

“Single Employer Plan”: any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan.

“S&P”: Standard and Poor’s Ratings Group, or any successor to its rating agency business.

“Specified Laws”: (i) Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V) and any other enabling legislation or executive order relating thereto, and (ii) the USA PATRIOT Act.

“Stop Loss Cure Amount”: as defined in Section 7.10(b).

“Sub-Limit”:

(a)           with respect to the Maximum Sub-Limit:

(i)            from the date of this Agreement until the date the first election is made by the Borrowers pursuant to clause (a)(ii) of this definition, $150,000,000; and

(ii)           at any time after the Syndication Date, so long as no Default or Event of Default has occurred and is continuing or would result from such election, the amount set forth in the table below under the heading “Maximum Sub-Limit” elected by the Borrowers from time to time by written notice delivered to the Administrative Agent in the form attached hereto as Annex V (the “Sub-Limit Election Notice”); provided that, at the time of any such election of any such amount as the Maximum Sub-Limit, but not for any other purpose herein, each of the Borrowers’ Consolidated Net Working Capital,

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Consolidated Tangible Net Worth and Consolidated Leverage Ratio at such time of election, each as determined by the Applicable Financial Statements, are within the requirements set forth opposite such amount in the table below; provided further that, the Maximum Sub-Limit shall at no time exceed the Total Commitment at such time; provided further that, if at any time the Borrowers elect to reduce the Maximum Sub-Limit, the Borrowers shall prepay the Loans and/or Cash Collateralize, replace or decrease (if the beneficiary of such Letter of Credit agrees to such decrease) the amount of outstanding Letters of Credit to the extent required by Section 4.7(c) on the date of such election:

(b)           with respect to each of the Swing Line Loan Sub-Limit, the Daylight Overdraft Loan Sub-Limit, the 364-Day Letters of Credit Sub-Limit or the Subsidiary L/C Sub-Limit:

(i)            from the date of this Agreement until the date the first election is made by the Borrowers pursuant to clause (a)(ii) of this definition, the amount set forth opposite the applicable Sub-Limit in the table below:

(ii)           thereafter, at any time, the amount set forth in the table below under the heading “Swing Line Loan Sub-Limit”, the “Daylight Overdraft Loan Sub-Limit”, the “364-Day Letters of Credit Sub-Limit” or the “Subsidiary L/C Sub-Limit” opposite the then-current Maximum Sub-Limit:

“Sub-Limit Election Notice”: as defined in the definition of “Sub-Limit” in this Section 1.1.

“Subordinated Debt Compliance Certificate”: as defined in Section 8.8.

“Subordinated Indebtedness”: any Indebtedness of the Borrowers and their Subsidiaries: (i) subject to Section 8.8, the payment of the principal of and interest on which and other obligations of such Person in respect thereof are subordinated to the prior payment in full of the principal of and interest (including by its terms post-petition interest) on the Loans and all other Obligations of the Borrowers to the Agents and the Lenders under the Loan Documents on terms and conditions approved in writing by

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the Administrative Agent; provided that, so long as no Default or Event of Default has occurred and is continuing, the Borrowers and their Subsidiaries may make scheduled payments of interest on Subordinated Indebtedness; (ii) any portion which is guaranteed by any Loan Party and all Guarantee Obligations in respect of such guarantee of such subordinated Indebtedness are subordinated to the Guarantees and all other Obligations of such Person to the Agents and the Lenders under the Loan Documents in the manner and to the extent such subordinated Indebtedness is subordinated to the Loans and all other Obligations of the Borrowers to the Agents and the Lenders under the Loan Documents under subclause (i) of this definition; (iii) such Indebtedness shall not have a maturity date earlier than six (6) months after the Termination Date; (iv) mandatory prepayments of such Indebtedness shall not be permitted earlier than six (6) months after the earlier of (A) the Termination Date and (B) the payment in full of principal of and interest (including by its terms post-petition interest) on the Loans and all other Obligations of the Loan Parties to the Agents and the Lenders under the Loan Documents (except for mandatory prepayments due under customary covenants relating to changes of control, the sale of assets, casualty events, or equity issuances, and excess cash flows); (v) all financial covenants contained therein corresponding to the covenants contained in Sections 8.1 of this Agreement shall contain ratio levels, amounts and thresholds less restrictive on the Borrowers and their Subsidiaries than the corresponding ratio levels, amount and thresholds contained in the corresponding covenants in the Loan Documents; and (vi) which shall not be secured in all or in part by any portion of the Collateral.

“Subsidiary”: as to any Person, a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.

“Subsidiary L/C Sub-Limit”: the amount set forth under the heading “Subsidiary L/C Sub-Limit” in clause (b)(i) or clause (b)(ii), as applicable, of the definition of “Sub-Limit” in this Section 1.1.

“Supermajority Lenders”: at any time, Lenders holding more than 75% of (i) the sum of Total Commitments, or (ii) if the Commitments have been terminated, the Total Extensions of Credit then outstanding.

“Swap Amounts due to Qualified Counterparties”:  as of any Borrowing Base Date, any amounts due to the Qualified Counterparties from the Loan Parties under Commodity Hedging Agreements, which are based on the Qualified Counterparty’s reasonable calculation of the Marked-to-Market Value of the aggregate amounts of such contracts.

 “Swing Line Lender”: BNP Paribas, in its capacity as lender of Swing Line Loans hereunder.

“Swing Line Loan Sub-Limit”: the amount set forth under the heading “Swing Line Loan Sub-Limit” in clause (b)(i) or clause (b)(ii), as applicable, of the definition of “Sub-Limit” in this Section 1.1.

“Swing Line Loans”: as defined in Section 2.3(a).

“Swing Line Participation Amount”: as defined in Section 2.5(b).

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“Syndication Date”: the date on which the Lead Arranger notifies the Parent Borrower that the primary syndication has been completed.

“Synthetic Lease”: any lease of property, real or personal, the obligations of the lessee in respect of which are treated as an operating lease for financial accounting purposes and a Financing Lease for tax purposes, in accordance with GAAP.

“Taxes”: as defined in Section 4.11(a).

“Termination Date”: May 20, 2011, or, if such date is not a Business Day, the next preceding Business Day.

“Tier 1 Counterparty”: in relation to an Eligible Account Receivable or Eligible Forward Contract, the counterparty thereto to the extent that (i) (a) such counterparty is Investment Grade, (b) such counterparty’s obligations with respect thereto are supported by Acceptable Investment Grade Credit Enhancement or (c) such counterparty and the credit exposure of the Loan Parties to such counterparty has either (A) been approved as of the Closing Date by the Lenders in their sole discretion and set forth on Schedule 1.1(A) as a Tier 1 Counterparty or (B) been approved by the Required Lenders, in their sole discretion, from time to time after the Closing Date in accordance with the following procedure: (x) the Borrowers shall deliver a written request to the Administrative Agent for such approval by the Required Lenders of such counterparty and credit exposure, which request shall be provided by the Administrative Agent to the Lenders, including, without limitation, if requested by a Lender, through posting on Intralinks or other web site in use to distribute information to the Lenders, or by other electronic mail, or other notice procedure permitted under Section 11.2; and (y) the Required Lenders shall inform the Administrative Agent of such approval in writing (by electronic communication, telecopy or facsimile) within five (5) Business Days after receipt of notice from the Administrative Agent; provided that, failure of a Lender to respond to any request for approval within the time period provided for hereby shall be deemed to be approval of such counterparty as a Tier 1 Counterparty by such Lender; provided further that, the Supermajority Lenders, in their sole discretion, may from time to time revoke the Tier 1 Counterparty status of any counterparty previously approved as a Tier 1 Counterparty or reduce the previously-approved credit exposure of the Loan Parties to such counterparty, which revocation or reduction shall be effective as of the first Borrowing Base Date that is at least ten (10) days after the delivery of written notice of such revocation or reduction by the Administrative Agent to the Borrowers.  The Administrative Agent may, in its sole discretion, extend such five (5) Business Day period if the Administrative Agent determines that any counterparty requires additional review by the Lenders. Schedule 1.1(A) shall be deemed amended to include such Tier 1 Counterparties without further action immediately upon the Required Lenders’ approval of such Tier 1 Counterparty and the related credit exposure in accordance with the procedure described in this definition.

“Tier 2 Counterparty”: in relation to an Eligible Account Receivable or Eligible Forward Contract, the counterparty thereto to the extent that (a) it is not a Tier 1 Counterparty and (b) either (i) the aggregate credit exposure of the Loan Parties to such counterparty (generally Accounts Receivable and other amounts owing to the Loan Parties from such counterparty under any Commodity Contract) does not exceed $400,000 for any counterparty described in this clause (b)(i) or to the extent and for so long as such exposure exceeds $400,000, the amount of any such Eligible Receivable from such counterparty shall be deemed to be $400,000 (such a counterparty, a “Restricted Tier 2 Counterparty”), or (ii) each such counterparty and the credit exposure of the Loan Parties to such counterparty has either (A) been approved as of the Closing Date by the Lenders in their sole discretion and set forth on Schedule 1.1(B) as a Tier 2 Counterparty or (B) been approved by the Required Lenders, in their sole discretion, from time to time after the Closing Date in accordance with the following procedure: (x) the Borrowers shall deliver a written request to the Administrative Agent for such approval by the Required Lenders of such

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counterparty and credit exposure, which request shall be provided by the Administrative Agent to the Lenders, including, without limitation, if requested by a Lender, through posting on Intralinks or other web site in use to distribute information to the Lenders, or by other electronic mail, or other notice procedure permitted under Section 11.2; and (y) the Required Lenders shall inform the Administrative Agent of such approval in writing (by electronic communication, telecopy or facsimile) within five (5) Business Days after receipt of notice from the Administrative Agent; provided that, failure of a Lender to respond to any request for approval within the time period provided for hereby shall be deemed to be approval of such counterparty as a Tier 2 Counterparty by such Lender; and provided further that, the Supermajority Lenders, in their sole discretion, may from time to time revoke the Tier 2 Counterparty status of any counterparty previously approved as a Tier 2 Counterparty or reduce the previously-approved credit exposure of the Loan Parties to such counterparty, which revocation or reduction shall be effective as of the first Borrowing Base Date that is at least ten (10) days after the delivery of written notice of such revocation or reduction by the Administrative Agent to the Borrowers.  The Administrative Agent may, in its sole discretion, extend such five (5) Business Day period if the Administrative Agent determines that any counterparty requires additional review by the Lenders.  Schedule 1.1(B) shall be deemed amended to include such Tier 2 Counterparties and the related credit exposure without further action immediately upon the Required Lenders’ approval of such Tier 2 Counterparty in accordance with the procedure described in this definition.

“Total Borrowing Base”: at any time, an amount equal to the sum of the Borrowing Base of each Loan Party.

“Total Commitment”: the aggregate amount of all Commitments of all Lenders.

“Total Extensions of Credit”: at any time, the aggregate outstanding principal and/or face amount of the Extensions of Credit of the Lenders then in effect.

 “Trade Letter of Credit”: a commercial or standby Letter of Credit supporting the purchase of Eligible Commodities.

“Trading Business”: with respect to each Lender, the day-to-day activities of such Lender or a division or Affiliate of such Lender relating to the proprietary purchase, sale, hedging and/or trading of commodities, including, without limitation, Eligible Commodities, and any related derivative transactions.

“Tranche”: Loans, the then-current Interest Periods which all begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).

“Transferee”: as defined in Section 11.7(f).

“Type”: as to any Loan, its nature as a Base Rate Loan, a Eurodollar Loan or a Cost of Funds Loan.

“UCP 600”: as defined in Section 3.1(g).

“United States Dollars” and “$”: dollars in lawful currency of the United States of America.

“Unreimbursed Amount”: as defined in Section 3.5(a).

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“Updated Financials”: as defined in the definition of “Applicable Financial Statements” in this Section 1.1.

“USA PATRIOT Act”:  as defined in Section 5.24.

“Wind-Up Accounts”: those demand deposit accounts, securities accounts and commodities accounts as set forth on Schedule 1.1(D).

1.2           Other Definitional Provisions.

(a)           Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes or any other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

(b)           As used herein and in any Notes, any other Loan Documents and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to the Borrowers and their respective Subsidiaries not defined in Section 1.1 and (subject to Section 1.2(c)) accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.

(c)           The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule, Exhibit and Annex references are to this Agreement unless otherwise specified.

(d)           The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(e)           Unless otherwise expressly provided herein, (i) references to Governing Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, waivers, supplements and other modifications thereto and (ii) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

1.3           Rounding.  Any financial ratios required to be maintained by the Borrowers 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).

SECTION 2.                                AMOUNT AND TERMS OF THE LOANS AND COMMITMENTS

2.1           Revolving Credit Loans.

(a)           Subject to the terms and conditions hereof, each Lender severally agrees to make revolving credit loans under the Commitments (the “Revolving Credit Loans”) to each Borrower in an amount requested by such Borrower from time-to-time during the Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Commitment Percentage of the sum of (i) the L/C Obligations then outstanding, (ii) the aggregate principal amount of the Swing Line Loans then outstanding and (iii) the aggregate principal amount of the Daylight Overdraft Loans then outstanding, does not exceed such Lender’s Commitment at such time. During the

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Commitment Period, the Borrowers may borrow, prepay the Revolving Credit Loans in whole or in part, and reborrow Revolving Credit Loans, all in accordance with the terms and conditions hereof.

(b)           Revolving Credit Loans may be denominated only in United States Dollars and may from time-to-time be (i) Eurodollar Loans, (ii) Base Rate Loans, (iii) Cost of Funds Loans or (iv) a combination thereof, in each case, as the applicable Borrower shall notify the Administrative Agent in accordance with Sections 2.4 and 4.3.  No Revolving Credit Loan shall be made as a Eurodollar Loan after the day that is one month prior to the Termination Date.

2.2           Daylight Overdraft Loans.

(a)           Subject to the terms and conditions hereof, the Daylight Overdraft Lender agrees to make daylight overdraft loans with respect to Deposit Accounts of the Borrowers located at the Collateral Agent (individually, a “Daylight Overdraft Loan” and collectively, the “Daylight Overdraft Loans”) to each Borrower from time-to-time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Daylight Overdraft Loans Sub-Limit then in effect; provided that, (i) the aggregate principal amount of Daylight Overdraft Loans outstanding at any time, when aggregated with the Daylight Overdraft Lender’s Commitment Percentage of the Total Extensions of Credit, may exceed the Daylight Overdraft Loan Sub-Limit then in effect or such Daylight Overdraft Lender’s Commitment then in effect and (ii) the Borrowers shall not request, and the Daylight Overdraft Lender shall not make, any Daylight Overdraft Loan if, after giving effect to the making of such Daylight Overdraft Loan, the aggregate amount of the Available Commitments would be less than zero.  During the Commitment Period, the Borrowers may use the Daylight Overdraft Loan Sub-Limit by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof.

(b)           Daylight Overdraft Loans shall be Base Rate Loans.  Subject to Section 2.6, each Daylight Overdraft Loan shall mature at 4:00 p.m. (New York City time), on the Borrowing Date therefor.

2.3           Swing Line Loans.

(a)           Subject to the terms and conditions hereof, the Swing Line Lender agrees to make a portion of the credit under the Commitments available to each Borrower by making swing line loans (individually, a “Swing Line Loan” and collectively, the “Swing Line Loans”) to any Borrower from time-to-time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Loan Sub-Limit then in effect; provided that, (i) the aggregate principal amount of Swing Line Loans outstanding at any time, when aggregated with the Swing Line Lender’s Commitment Percentage of the Total Extensions of Credit, may exceed the Swing Line Loan Sub-Limit then in effect or such Swing Line Lender’s Commitment then in effect and (ii) the Borrowers shall not request, and the Swing Line Lender shall not make, any Swing Line Loan if, after giving effect to the making of such Swing Line Loan, the aggregate amount of the Available Commitments would be less than zero.  During the Commitment Period, the Borrowers may use the Swing Line Loan Sub-Limit by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof.

(b)           Swing Line Loans shall be Base Rate Loans.  Subject to Section 2.5, each Swing Line Loan shall mature five (5) days after the Borrowing Date therefor.

2.4           Procedure for Borrowing.

(a)           The Borrowers may borrow under the Commitments during the Commitment Period on any Business Day; provided that, other than with respect to a request for a Daylight Overdraft

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Loan, such Borrower shall give the Administrative Agent, irrevocable notice (which notice must be received by the Administrative Agent, (x) in the case of a Revolving Credit Loan, prior to 12:00 Noon (New York City time), (A) three (3) Business Days prior to the requested Borrowing Date, if all or any part of the requested Revolving Credit Loans are to be initially Eurodollar Loans, or (B) on the same Business Day of the requested Borrowing Date, otherwise, and (y) in the case of a Swing Line Loan, prior to 3:00 p.m. (New York City time) on the requested Borrowing Date, in each case, in the form attached hereto as Annex I-A (the “Borrowing Notice”), specifying:

(i)       whether the borrowing is to be a Revolving Credit Loan, Daylight Overdraft Loan or a Swing Line Loan;

(ii)      the amount to be borrowed;

(iii)     the requested Borrowing Date;

(iv)    in the case of a Revolving Credit Loan, whether the borrowing is to be a Base Rate Loan, a Cost of Funds Loan, a Eurodollar Loan or a combination thereof;

(v)     in the case of a Revolving Credit Loan, the respective amounts of each such Type of Revolving Credit Loan; and

(vi)    in the case of a Revolving Credit Loan, if the borrowing is to be entirely or partly of Eurodollar Loans or Cost of Funds Loans, the respective amounts of each such Type of Revolving Credit Loan and the respective lengths of the initial Interest Periods therefor;

provided, further, that, in the case of Daylight Overdraft Loans, (w) no Borrowing Notice shall be required, (x) on any Business Day and with respect to any Deposit Account located at the Collateral Agent, the Daylight Overdraft Lender will consider making a Daylight Overdraft Loan based on a statement showing the accounts payable due and owing from such Deposit Account on such day and the Eligible Accounts Receivable expected by a Borrower to be received in such Deposit Account on such day, (y) the making of a Daylight Overdraft Loan by the Daylight Overdraft Lender shall be deemed to constitute a representation by the Borrowers that the conditions contained in Section 6.2 have been satisfied, and (z) the making of any Daylight Overdraft Loan shall not constitute a waiver of the failure of any condition in Section 6.2 to be satisfied or any other Default or Event of Default.

(b)      Each borrowing under the Commitments shall be in an amount equal to (x) in the case of Base Rate Loans, $100,000 or a whole multiple thereof (or, if the then Available Commitments are less than $100,000, such lesser amount) and (y) in the case of Eurodollar Loans and Cost of Funds Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof.

(c)      Upon receipt of any notice from a Borrower pursuant to Section 2.4(a) with respect to a requested borrowing under the Commitments (other than a notice in respect of a Swing Line Loan or a Daylight Overdraft Loan), the Administrative Agent shall promptly notify each Lender thereof.  Each Lender (other than the Swing Line Lender with respect to a Swing Line Loan and the Daylight Overdraft Lender with respect to a Daylight Overdraft Loan) will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of such Borrower at the Administrative Agent’s office specified in Section 11.2 prior to 3:00 p.m. (New York City time) on the Borrowing Date requested by such Borrower in funds immediately available to the Administrative Agent.  Each Revolving Credit Loan will then promptly be made available on the Borrowing Date to such Borrower by the Administrative Agent by wire transfer to the account of such Borrower set forth on Schedule 2.2(A) in like funds as received by the Administrative Agent.  Each Swing Line Loan will

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promptly be made available on the Borrowing Date to the applicable Borrower by the Swing Line Lender by wire transfer to the account of such Borrower set forth on Schedule 2.2(A).  Each Daylight Overdraft Loan will be made available on the Borrowing Date to the applicable Borrower by the Daylight Overdraft Lender by crediting the amount of such Daylight Overdraft Loan to the account of such Borrower set forth on Schedule 2.2(B), such account to be held at the Daylight Overdraft Lender.

2.5           Refunding of Swing Line Loans.  (a)  If the Administrative Agent shall not have received full repayment in cash of any Swing Line Loan on or before 1:00 p.m. (New York City time) on the day that is five (5) Business Days after the making of such Swing Line Loan, the Swing Line Lender may, not later than 3:00 p.m. (New York City time), on such day, request on behalf of the Borrower of such Swing Line Loan (which hereby irrevocably authorizes the Swing Line Lender to act on its behalf), that each Lender, including the Swing Line Lender, make a Revolving Credit Loan (which initially shall be a Base Rate Loan) in an amount equal to such Lender’s Commitment Percentage of the outstanding amount of the portion of such Swing Line Loan (a “Refunded Swing Line Loan”).  In accordance with Section 2.5(d), unless any of the events described in Section 9.1(f) shall have occurred and be continuing (in which event the procedures of clause (b) of this Section 2.5 shall apply), each Lender shall make the proceeds of its Revolving Credit Loan available to the Swing Line Lender for the account of the Swing Line Lender at the Swing Line Lender’s Applicable Lending Office for Base Rate Loans prior to 11:00 a.m. (New York City time) in funds immediately available on the Business Day next succeeding the date such request is made.  The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans.

(b)           If prior to the making of any Revolving Credit Loan pursuant to paragraph (a) of this Section 2.5 one of the events described in Section 9.1(f) shall have occurred and be continuing, each Lender shall, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the then-outstanding Swing Line Loans in an amount equal to its Commitment Percentage of such Swing Line Loans that were to have been repaid with such Revolving Credit Loans (the “Swing Line Participation Amount”).  Each Lender shall promptly transfer to the Swing Line Lender, in immediately available funds, the amount of its Swing Line Participation Amount and upon receipt thereof the Swing Line Lender shall deliver to such Lender a Swing Line Loan participation certificate, in a form specified by the Swing Line Lender, dated the date of receipt of the Swing Line Participation Amount and in such amount.

(c)           Whenever, at any time after the Swing Line Lender has received from any  Lender such Lender’s Swing Line Participation Amount, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender shall distribute to such Lender its Swing Line Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded, and in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swing Line Loans then due) in like funds as received; provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Lender shall return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it in like funds as such payment is required to be returned by the Swing Line Lender.

(d)           Each Lender’s obligation to make Revolving Credit Loans referred to in Section 2.5(a) and to purchase participating interests pursuant to Section 2.5(b) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrowers, or any other Person for any reason whatsoever, (ii) the occurrence or continuance of an Event of Default, (iii) any failure to satisfy any condition precedent to extensions of credit set forth

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in Section 6, (iv) any adverse change in the condition (financial or otherwise) of any Loan Party, (v) any breach of this Agreement by any Loan Party or any other Lender or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

2.6           Refunding of Daylight Overdraft Loans.

(a)           If the Administrative Agent shall not have received full repayment in cash of any Daylight Overdraft Loan on or before 3:00 p.m. (New York City time) on the Borrowing Date of such Daylight Overdraft Loan, the Daylight Overdraft Lender may, not later than 4:00 p.m. (New York City time), on such day, request on behalf of such Borrower (which hereby irrevocably authorizes the Daylight Overdraft Lender to act on its behalf), that each Lender make a Revolving Credit Loan (which initially shall be a Base Rate Loan) in an amount equal to the outstanding amount of such Daylight Overdraft Loan (a “Refunded Daylight Overdraft Loan”).  In accordance with Section 2.6(d), unless any of the events described in Section 9.1(f) shall have occurred and be continuing (in which event the procedures of clause (b) of this Section 2.6 shall apply), each Lender shall make the proceeds of its Revolving Credit Loan available to the Daylight Overdraft Lender for the account of the Daylight Overdraft Lender at the Daylight Overdraft Lender’s Applicable Lending Office for Base Rate Loans prior to 11:00 a.m. (New York City time) in funds immediately available on the Business Day next succeeding the date such request is made.  The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Daylight Overdraft Loans.

(b)           If prior to the making of any Revolving Credit Loan pursuant to paragraph (a) of this Section 2.6 one of the events described in Section 9.1(f) shall have occurred and be continuing, each  Lender shall, on the date such Revolving Credit Loan was to have been made, purchase an undivided participating interest in the then-outstanding Daylight Overdraft Loans in an amount equal to its Commitment Percentage of such Daylight Overdraft Loans that were to have been repaid with such Revolving Credit Loans (the “Daylight Overdraft Participation Amount”).  Each Lender shall promptly transfer to the Daylight Overdraft Lender, in immediately available funds, the amount of its Daylight Overdraft Participation Amount and upon receipt thereof the Daylight Overdraft Lender shall deliver to such Lender a Daylight Overdraft Loan participation certificate, in a form specified by the Daylight Overdraft Lender, dated the date of receipt of the Daylight Overdraft Participation Amount and in such amount.

(c)           Whenever, at any time after the Daylight Overdraft Lender has received from any Lender such Lender’s Daylight Overdraft Participation Amount, the Daylight Overdraft Lender receives any payment on account thereof, the Daylight Overdraft Lender shall distribute to such Lender its Daylight Overdraft Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded, and in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Daylight Overdraft Loans then due) in like funds as received; provided, however, that in the event that such payment received by the Daylight Overdraft Lender is required to be returned, such Lender shall return to the Daylight Overdraft Lender any portion thereof previously distributed by the Daylight Overdraft Lender to it in like funds as such payment is required to be returned by the Daylight Overdraft Lender.

(d)           Each Lender’s obligation to make Revolving Credit Loans referred to in Section 2.6(a) and to purchase participating interests pursuant to Section 2.6(b) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Daylight Overdraft Lender, the Borrowers, or any other Person for any reason whatsoever, (ii) the occurrence or continuance of an Event of Default, (iii) any failure to satisfy any condition precedent to extensions of credit set forth in

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Section 6, (iv) any adverse change in the condition (financial or otherwise) of any Loan Party, (v) any breach of this Agreement by any Loan party or any other Lender or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

2.7           Commitment Fee.  The Borrowers agree to pay to the Administrative Agent for the account of each Lender a commitment fee for the period from and including the first day of the Commitment Period to but not including the Termination Date, computed at the Commitment Fee Rate on the average daily amount of the Available Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on the fifteenth day after the last Business Day of each March, June, September and December (or, if such day is not on a Business Day, the next succeeding Business Day) and on the Termination Date or such earlier date as the Commitments shall terminate as provided herein, commencing on the first of such dates to occur after the date hereof.

SECTION 3.                                LETTERS OF CREDIT

3.1           Letters of Credit.

(a)           Subject to the terms and conditions hereof, each Issuing Lender severally agrees to issue letters of credit (“Letters of Credit”) for the account of each Borrower on behalf of Loan Parties from time-to-time during the Commitment Period; provided that, after giving effect to any Letter of Credit requested by a Borrower:

(i)            the Total Extensions of Credit shall not exceed the Total Borrowing Base at such time;

(ii)           Sections 3.1(b), (c) and (d) shall not be contravened at any time;

(iii)          the Total Extensions of Credit shall not exceed the Total Commitments at any time;

(iv)          the Total Extensions of Credit shall not exceed the Maximum Amount at such time; and

(v)           the aggregate outstanding amount of Letters of Credit issued for the accounts of the Borrowers on behalf of Loan Parties (other than the Borrowers) shall not exceed the Subsidiary L/C Sub-Limit.

(b)           Each Trade Letter of Credit shall, subject to Section 3.2, expire no later than the earlier of ninety (90) days after the date of issuance and the Termination Date; provided that, at any time, Trade Letters of Credit may be issued that expire after the Termination Date but no later than the earlier of ninety (90) days after the date of issuance and ninety (90) days after the Termination Date then in effect if such Letters of Credit are Cash Collateralized no later than twenty (20) days prior to the Termination Date in an amount equal to 103% of the undrawn face amount of each such Trade Letter of Credit; provided further that, at any time, Trade Letters of Credit may be issued that expire later than ninety (90) days following issuance but no later than the earlier of 364 days after the date of issuance and six months after the Termination Date then in effect (any Trade Letter of Credit issued pursuant to this proviso having an expiration date later than ninety (90) days following issuance but less than 364 days following issuance, a “364-Day Trade Sub-Limit Letter of Credit”) so long as the face amount of such Trade Letters of Credit, together with the sum of the then already outstanding L/C Obligations in respect of (i) 364-Day Trade Sub-Limit Letters of Credit and (ii) Performance Letters of Credit, would not exceed the 364-Day Letters of Credit Sub-Limit if such 364-Day Trade Sub-Limit Letters of Credit that expire

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after the Termination Date are Cash Collateralized no later than twenty (20) days prior to the Termination Date in an amount equal to 103% of the undrawn face amount of each such 364-Day Trade Sub-Limit Letter of Credit.  For the avoidance of doubt, subject to the provisions of Section 3.1(a), Trade Letters of Credit other than 364-Day Trade Sub-Limit Letters of Credit may be issued hereunder in an aggregate outstanding amount not to exceed the lesser of the Total Commitments, the Total Borrowing Base or the Maximum Amount.

(c)           Each Performance Letter of Credit shall, subject to Section 3.2, expire no later than the earlier of 364 days after the date of issuance and the Termination Date; provided that, at any time, Performance Letters of Credit may be issued that expire after the Termination Date but no later than the earlier of 364 days after issuance and six months after the Termination Date then in effect if such Letters of Credit are Cash Collateralized no later than twenty (20) days prior to the Termination Date in an amount equal to 103% of the undrawn face amount of each such Letter of Credit; provided further that, Performance Letters of Credit may only be issued in an amount that does not exceed an amount equal to (a) the 364-Day Letters of Credit Sub-Limit minus (b) the sum of the then already outstanding L/C Obligations in respect of (i) 364-Day Trade Sub-Limit Letters of Credit and (ii) Performance Letters of Credit.

(d)           At any time, the aggregate undrawn face amount of outstanding Letters of Credit which expire following the Termination Date shall not exceed $25,000,000.

(e)           The obligations of the L/C Participants to purchase participations in the obligations of the Issuing Lenders under outstanding Letters of Credit pursuant to Section 3.4 shall survive the Termination Date with respect to Letters of Credit which have been Cash Collateralized pursuant to Section 3.1 until the earliest of (i) the expiration date for such Letters of Credit, (ii) the date the entire amount available under such Letters of Credit are drawn and such drawings are repaid, and (iii) the date that is six (6) months after the Termination Date; provided that, notwithstanding any other provision of this Section 3.1(e), with respect to any Letter of Credit having an expiration date following the Termination Date (such a Letter of Credit, a “Post-Termination LOC”), in no event shall the obligations of the L/C Participants to purchase participations in the obligations of an Issuing Lender under a Post-Termination LOC pursuant to Section 3.4 expire or terminate prior to the Business Day following the expiration, cancellation or termination of the last remaining outstanding Post-Termination LOC.

(f)            From time-to-time, each Borrower may Cash Collateralize any Letter of Credit issued for its account in an amount equal to the undrawn face amount of such Letter of Credit.  Cash Collateralized amounts with respect to a Letter of Credit shall be applied by the Collateral Agent to the payment of drafts drawn under such Letter of Credit.  After such Letter of Credit shall have expired or been fully drawn upon and all Reimbursement Obligations with respect to such Letter of Credit shall have been satisfied, the balance, if any, in such cash collateral account shall be returned to such Borrower.

(g)           Each Letter of Credit shall be subject to the International Standby Practices (“ISP98”) International Chamber of Commerce Publication No. 590 or Uniform Customs and Practice for Documentary Credits No. 600 (“UCP 600”), as applicable, and to the extent not inconsistent with ISP 98 or UCP 600, the Laws of the State of New York.

3.2           Procedure for Issuance of Letters of Credit.  (a) Each Borrower may from time-to-time request that any Issuing Lender issue or amend a Letter of Credit by delivering to such Issuing Lender and the Administrative Agent a Letter of Credit Request and such other certificates, documents and other papers and information as such Issuing Lender may reasonably request (consistent with requests made by such Issuing Lender from other similarly-situated account parties).  In the case of a request for an initial issuance of any Letter of Credit, such Letter of Credit Request shall specify:

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(i)          the maximum amount of such Letter of Credit and the account party therefor;

(ii)         whether such Letter of Credit is a Performance Letter of Credit or a Trade Letter of Credit;

(iii)        the requested date on which such Letter of Credit is to be issued;

(iv)       the purpose and nature of the proposed Letter of Credit;

(v)        the name and address of the beneficiary of such Letter of Credit;

(vi)       the expiration or termination date of the Letter of Credit;

(vii)      the documents to be presented by such beneficiary in the case of a drawing or demand for payment thereunder; and

(viii)     the delivery instructions for such Letter of Credit.

In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request shall specify in form and detail satisfactory to the Administrative Agent and the Issuing Lender thereof:

(i)          the Letter of Credit to be amended;

(ii)         the requested date of the proposed amendment;

(iii)        the nature of the proposed amendment; and

(iv)       the delivery instructions for such amendment.

Any such Letter of Credit Request must be received by the applicable Issuing Lender and the Administrative Agent by no later than 11:00 a.m. (New York City time), one (1) Business Day prior to the date such Letter of Credit is to be issued or amended, or such other time as previously agreed between the Administrative Agent and the applicable Borrower.  Upon the issuance of any Letter of Credit or any amendment to an outstanding Letter of Credit, the Administrative Agent and the applicable Lenders shall be entitled to assume that the Letter of Credit Request and certificates, documents and other papers and information reasonably requested by the relevant Issuing Lender in connection therewith were completed and delivered to the satisfaction of such Issuing Lender.

(b)           Upon receipt of a Letter of Credit Request by an Issuing Lender, such Issuing Lender will confirm with the Administrative Agent (by telephone and in writing) that the Administrative Agent has received a copy of such Letter of Credit Request and, if not, such Issuing Lender will provide the Administrative Agent, with a copy thereof.  Upon receipt by such Issuing Lender of confirmation from the Administrative Agent, that the requested Letter of Credit or amendment is permitted in accordance with the terms hereof, such Issuing Lender shall, on the requested date, issue a Letter of Credit for the account of the requesting Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with such Issuing Lender’s usual and customary business practices.

(c)           Notwithstanding anything herein to the contrary, an Issuing Lender is under no obligation to issue or provide any Letter of Credit unless consented to by such Issuing Lender and the Administrative Agent, if:

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(i)            Any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Lender from issuing or amending such Letter of Credit, or any Requirement of Law applicable to such Issuing Lender or any request or directive (whether or not having the force of Law) from any Governmental Authority with jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender refrain from, the issuance or amending of a Letter of Credit generally or such Letter of Credit in particular or shall impose upon such Issuing Lender with respect to such Letter of Credit any restriction, reserve or capital requirement (in the case of an amendment of a Letter of Credit, for which such Issuing Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; or

(ii)           such Letter of Credit is not in form and substance reasonably acceptable to such Issuing Lender thereof or the issuance of such Letter of Credit shall violate any applicable policies of such Issuing Lender that apply to its customers generally.

(d)           Within one (1) Business Day 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 Issuing Lender thereof will also deliver to the applicable Borrower and the Administrative Agent, a true and complete copy of such Letter of Credit or amendment.

3.3           Fees, Commissions and Other Charges.

(a)           Letter of Credit Fee.  Each Borrower requesting a Letter of Credit shall pay to the Administrative Agent, for the account of the relevant Issuing Lender and the L/C Participants a letter of credit commission, with respect to each outstanding Letter of Credit, in an amount equal to a per annum fee of 1.375% times the average daily maximum amount available to be drawn under such Letter of Credit from time to time; provided that, the letter of credit commission for each such Letter of Credit shall not be in an amount less than $600, and, in each case, shall be shared ratably among the L/C Participants and the Issuing Lender of such Letter of Credit in accordance with their respective Commitment Percentages.  Such commissions shall be payable monthly in arrears on each L/C Fee Payment Date.  With respect to any Letter of Credit that expires after the Termination Date, on or prior to the Termination Date, the applicable Borrower shall pay to the Administrative Agent, for the account of the relevant Issuing Lender and the L/C Participants, an amount equal to the letter of credit commission to be owed with respect to such Letter of Credit for the period from the Termination Date until the expiration date of such Letter of Credit.

(b)           Other Charges.  In addition to the foregoing fees and commissions, the relevant Borrower shall pay or reimburse each Issuing Lender of any Letter of Credit for such normal and customary costs and expenses as are incurred or charged by such Issuing Lender in issuing, effecting payment under, amending or otherwise administering any Letter of Credit.  The applicable Borrower shall pay each Issuing Lender of any Letter of Credit a fee of $100 for any amendment of a Letter of Credit issued by such Issuing Lender.

(c)           Distribution of Fees.  The Administrative Agent shall, within two (2) Business Days following its receipt thereof, distribute to the relevant Issuing Lenders and the L/C Participants all fees and commissions received by the Administrative Agent for their respective accounts pursuant to this Section 3.3, and shall promptly notify the Administrative Agent of such distribution.

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3.4           L/C Participations.

(a)           Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce the Issuing Lenders to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from each such Issuing Lender, on the terms and conditions hereinafter stated, for such L/C Participant’s own account and risk, an undivided interest in such Issuing Lender’s obligations and rights under each Letter of Credit issued or provided by such Issuing Lender hereunder and the amounts paid by such Issuing Lender thereunder equal to such L/C Participant’s Commitment Percentage.

(b)           Each L/C Participant’s obligation to accept and purchase for such L/C Participant’s own account and risk, an undivided interest in an Issuing Lender’s obligations and rights under each Letter of Credit issued or provided by such Issuing Lender hereunder and the amounts paid by such Issuing Lender thereunder equal to such L/C Participant’s Commitment Percentage shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such L/C Participant may have against any Issuing Lender, any Borrower, or any other Person for any reason whatsoever, (ii) the occurrence or continuance of an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of any Loan Party, (iv) any breach of this Agreement by any Loan Party or any other Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

(c)           If any Borrower fails to reimburse any Issuing Lender pursuant to Section 3.5(a) at the time and on the due date specified in such Section (the “Reimbursement Date”), such Issuing Lender shall so notify the Administrative Agent (with a copy to the Borrowers), which notice shall be provided on a Business Day, and specify in such notice the amount of the Unreimbursed Amount.  Immediately upon receipt of such notice from such Issuing Lender, the Administrative Agent shall notify each L/C Participant of the Reimbursement Date, the Unreimbursed Amount, and the amount of such L/C Participant’s Commitment Percentage.

(d)           If any amount required to be paid by any L/C Participant to any Issuing Lender pursuant to Section 3.4(a), 3.4(b) and 3.4(c) in respect of any Unreimbursed Amount is paid to such Issuing Lender within one (1) Business Day after such L/C Participant receives a copy of the notice delivered by the relevant Issuing Lender to the Administrative Agent, pursuant to Section 3.4(c) (provided that, if such notice is not received by such L/C Participant prior to 11:00 a.m. (New York City time), the amount required to be paid shall be due on the second Business Day following the receipt of such notice), such L/C Participant shall pay on that Business Day to such Issuing Lender from its Applicable Lending Office for the Letter of Credit for which reimbursement is being sought on demand an amount equal to the product of (i)  such amount, times (ii) the daily average Federal Funds Effective Rate, as quoted by such Issuing Lender, during the period from and including the date such payment is required to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360.  If any such amount required to be paid by any L/C Participant pursuant to this Section 3.4 is not in fact made available to the applicable Issuing Lender by such L/C Participant within such one (1) Business Day period, such Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to Base Rate Loans hereunder.  A certificate of any Issuing Lender submitted to any L/C Participant with respect to any amounts owing under this Section 3.4 shall be conclusive in the absence of manifest error.

(e)           Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its Commitment Percentage of such payment in accordance with Section 3.4(c), such Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Borrowers or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof, such Issuing Lender will

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distribute to such L/C Participant its Commitment Percentage thereof; provided, however, that in the event that any such payment received by such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C Participant shall return to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.

3.5           Reimbursement Obligations of the Borrowers.

(a)           Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing or demand for payment under such Letter of Credit, the Issuing Lender of such Letter of Credit shall promptly notify the applicable Borrower and the Administrative Agent thereof.  If such Borrower receives notice (confirmed by telephone) from such Issuing Lender of a drawing or demand for payment under a Letter of Credit prior to 11:00 a.m. (New York City time), on any Business Day, such Borrower shall reimburse such Issuing Lender on such Business Day for the Unreimbursed Amount of such Letter of Credit.  If such Borrower receives notice (confirmed by telephone) from such Issuing Lender of a drawing or demand for payment under a Letter of Credit at or after 11:00 a.m. (New York City time), on any Business Day, such Borrower shall so reimburse such Issuing Lender on the Business Day immediately following the Business Day upon which such notice was received by such Borrower; provided that, such Borrower may reimburse such Issuing Lender with the proceeds of Revolving Credit Loans, Daylight Overdraft Loans or Swing Line Loans made pursuant to Section 2.4 or with proceeds from any other source. Such reimbursement shall be made directly to such Issuing Lender in an amount equal to (i) the amount so paid and (ii) any Non-Excluded Taxes and any reasonable fees, charges or other costs or expenses incurred by such Issuing Lender at its Applicable Lending Office in immediately available funds (such amount that has not been reimbursed by such Borrower being, the “Unreimbursed Amount”).

(b)           If the relevant Issuing Lender shall not have received full reimbursement for any drawing prior to the time such reimbursement is due for such drawing pursuant to Section 3.5(a) (unless an event of the type described in Section 9.1(f) shall have occurred and be continuing with respect to the Borrower, in which case the procedures specified in Section 3.4 for funding by L/C Participants shall apply), such drawing or demand for payment under a Letter of Credit shall constitute a request by such Borrower for a borrowing pursuant to Section 2.4 of Revolving Credit Loans that are Base Rate Loans in the amount equal to the Unreimbursed Amount of such Letter of Credit.  The Borrowing Date with respect to such borrowing shall be the date of such drawing or payment.

(c)           With respect to Unreimbursed Amounts that are not paid on the date due, interest shall be payable on any and all Unreimbursed Amounts from the date such amounts become payable (whether at stated maturity, by acceleration or otherwise) until payment in full (either in cash or upon the making of a Revolving Credit Loan) at the applicable rate which would be payable on any outstanding Revolving Credit Loans which were then overdue.

3.6           Obligations Absolute.  (a)  Each Borrower’s obligations under this Section 3 shall be absolute and unconditional under any and all circumstances and irrespective of any set-off, counterclaim or defense to payment which such Borrower may have or have had against any Issuing Lender, the Administrative Agent, any beneficiary of a Letter of Credit or any other Person.

(b)           Subject to the provisions of UCP 600, each Borrower agrees with each Issuing Lender that such Issuing Lender shall not be responsible for, and the Borrowers’ Reimbursement Obligations under Section 3.5(a) shall not be affected by, among other things, (i) the validity or genuineness of documents submitted to the Issuing Lender for payment under the Letter of Credit or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, (ii) any dispute between or among the Borrowers and any beneficiary of any Letter of Credit or

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any other party to which such Letter of Credit may be transferred, (iii) any claims whatsoever of such Borrower against any beneficiary of such Letter of Credit or any such transferee, (iv) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations of the Borrowers in respect of any Letter of Credit or any other amendment or waiver of or any consent to departure from the terms of any Letter of Credit or any document executed or delivered in connection with the issuance or payment thereof, or (v) any payment by the Issuing Lender of any Letter of Credit against presentation of any document or certificate that does not strictly comply with the terms of such Letter of Credit, or any payment made by any Issuing Lender under any 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 any Letter of Credit, including arising in connection with any proceeding of the type described in Section 9.1(f).

(c)           No Issuing Lender shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions caused by such Issuing Lender’s gross negligence or willful misconduct.

(d)           Each Borrower agrees that any action taken or omitted by any Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct and in accordance with the standards of care specified in the New York Uniform Commercial Code shall be binding on such Borrower and shall not result in any liability of such Issuing Lender to such Borrower.

3.7           Role of the Issuing Lenders.  (a)  The responsibility of any Issuing Lender to any Borrower in connection with any draft presented for payment under any Letter of Credit issued on behalf of such Borrower shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered by or on behalf of the beneficiary under such Letter of Credit in connection with such presentment are in conformity with such Letter of Credit.  In addition, each Lender and the Borrowers agree that, in paying any drawing or demand for payment under any Letter of Credit, the Issuing Lender of such Letter of Credit shall not have any responsibility to inquire as to the validity or accuracy of any document presented in connection with such drawing or demand for payment or the authority of the Person executing or delivering the same.

(b)           No Agent-Related Person nor any of the respective correspondents, participants or assignees of any Issuing Lender shall be liable to any Lender for: (i) any action taken or omitted in connection herewith in respect of any Letter of Credit at the request or with the approval or deemed approved of the Required Lenders; (ii) any action taken or omitted in respect of any Letter of Credit in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any Letter of Credit or any document delivered in connection with the issuance or payment of such Letter of Credit.

(c)           The Borrowers hereby assume 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 a Borrower from pursuing such rights and remedies as it may have against such beneficiary or transferee.  No Agent-Related Person, nor any of the respective correspondents, participants or assignees of the Issuing Lenders shall be liable or responsible for any of the matters described in Section 3.6; provided, however, that anything in such Section or elsewhere herein to the contrary notwithstanding, the Borrowers may have a claim against any Issuing Lender and such Issuing Lender may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrowers which the Borrowers proved

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were caused by such Issuing Lender’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of documents strictly complying with the terms and conditions of such Letter of Credit.  In furtherance and not in limitation of the foregoing: (i) any Issuing Lender 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 (ii) no Issuing Lender shall 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.

3.8           Letter of Credit Request.  To the extent that any material provision of any Letter of Credit Request related to any Letter of Credit is inconsistent with the provisions of this Agreement, the provisions of this Agreement shall apply.