Form 8-K
8-K — PAR PACIFIC HOLDINGS, INC.
Accession: 0001193125-26-224142
Filed: 2026-05-14
Period: 2026-05-14
CIK: 0000821483
SIC: 1311 (CRUDE PETROLEUM & NATURAL GAS)
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — d176382d8k.htm (Primary)
EX-4.1 (d176382dex41.htm)
EX-10.1 (d176382dex101.htm)
EX-99.1 (d176382dex991.htm)
GRAPHIC (g176382g0514092210579.jpg)
GRAPHIC (g176382g60u35.jpg)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K
8-K (Primary)
Filename: d176382d8k.htm · Sequence: 1
8-K
825 Town & Country Lane false 0000821483 0000821483 2026-05-14 2026-05-14
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 14, 2026
Par Pacific Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware
1-36550
84-1060803
(State or other jurisdiction
of incorporation)
(Commission
File Number)
(I.R.S. Employer
Identification No.)
825 Town & Country Lane , Suite 1500
Houston, Texas
77024
(Address of principal executive offices)
(Zip Code)
(281) 899-4800
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
Common stock, $0.01 par value
PARR
New York Stock Exchange
(indicate by check)
NYSE Texas
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01
Entry into a Material Definitive Agreement.
Senior Notes Offering
On May 14, 2026, Par Petroleum, LLC (the “Issuer”), a wholly owned subsidiary of Par Pacific Holdings, Inc. (the “Company”), completed the issuance of $500 million in aggregate principal amount of 7.375% Senior Notes due 2034 (the “Notes”) in a private placement (the “Offering”) pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as amended (the “Securities Act”).
The Notes were issued under an Indenture, dated as of May 14, 2026 (the “Indenture”), among the Issuer, the guarantors named therein and U.S. Bank Trust Company, National Association, as trustee.
Interest on the Notes is payable semi-annually in arrears on June 1 and December 1 of each year, commencing on December 1, 2026, to holders of record on the immediately preceding May 15 and November 15. The Notes will mature on June 1, 2034, unless earlier redeemed or purchased. The Notes are initially fully and unconditionally guaranteed on a senior unsecured basis, jointly and severally, by the Company and each of the Issuer’s existing subsidiaries that guarantee the ABL Credit Facility (as defined herein).
The Issuer may redeem all or part of the Notes at any time prior to June 1, 2029 at a redemption price equal to 100% of the principal amount of Notes redeemed, plus a “make whole” premium and accrued and unpaid interest, if any, to the date of redemption. The Issuer may redeem the Notes at any time on or after June 1, 2029 at the redemption prices described in the Indenture, plus accrued and unpaid interest, if any, to the date of redemption. Additionally, at any time prior to June 1, 2029, the Issuer may redeem up to 40% of the aggregate principal amount of the Notes with an amount equal to all or a portion of the net cash proceeds of certain equity offerings, at a redemption price equal to 107.375% of the principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the date of redemption.
If a “change of control” occurs that results in a “ratings decline” (each as defined in the Indenture) occurs, holders of the Notes will have the option to require the Issuer to purchase for cash all or a portion of their Notes at a price equal to 101% of the principal amount of the Notes purchased, plus accrued and unpaid interest, if any, to the date of purchase.
The Indenture contains restrictive covenants limiting the ability of the Issuer and its restricted subsidiaries (as defined in the Indenture) to, among other things, incur additional indebtedness or issue certain disqualified equity, create liens on certain assets, pay dividends or make other equity distributions, purchase or redeem capital stock, make certain investments, sell certain assets to secure debt, agree to certain restrictions on the ability of restricted subsidiaries to make distributions, loans or other asset transfers to the Issuer, merge, consolidate, sell or otherwise dispose of all or substantially all assets or engage in transactions with affiliates. The Indenture also contains customary events of default.
The foregoing description of the Indenture and the Notes is qualified in its entirety by reference to the full text of the Indenture and the form of the Notes, copies of which are filed as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K (this “Current Report”) and incorporated herein by reference.
New ABL Credit Facility
On May 14, 2026, the Issuer, the Company and certain subsidiaries thereof (collectively, the “credit parties”) entered into an Amended and Restated Asset-Based Revolving Credit Agreement (the “New ABL”) with a group of lenders and Wells Fargo Bank, National Association, as agent, issuing bank and swing lender, to amend and restate, increase and extend the Asset-Based Revolving Credit Agreement, dated as of April 26, 2023 (as amended or otherwise modified prior to the effectiveness of such amendment and restatement, the “Existing ABL”).
The New ABL is a senior secured asset-based revolving credit facility in an aggregate principal amount of up to $1.8 billion with a $500 million incremental facility, which is subject to additional lender commitments and certain other conditions. The proceeds of the loans may be used for our and our subsidiaries’ capital expenditures, turnaround expenditures, working capital and general corporate purposes. The New ABL provides for loans and letters of credit in an amount up to the aggregate availability under the facility, subject to meeting certain borrowing base conditions, with sublimits of $180 million for swing loans and $600 million for letters of credit. The New ABL will mature on May 14, 2031.
Loans under the New ABL bear interest at an annual rate equal to (i) 1.25% plus Secured Overnight Financing Rate (“SOFR”) plus a base rate, if the credit parties’ quarterly excess availability is greater than 50.0%, (ii) 1.50% plus SOFR plus
a base rate, if the credit parties’ quarterly excess availability is more than 30.0% but less than 50.0%, or (iii) 1.75% plus SOFR plus a base rate, if the credit parties’ quarterly excess availability is less than 30.0%. All borrowings under the New ABL are subject to the satisfaction of customary conditions, including absence of a default and accuracy of representations and warranties. The credit parties are also required to pay a commitment fee on the unutilized commitments and pay customary letter of credit fees.
The New ABL contains customary covenants for a financing of this type and requires the credit parties in certain circumstances to comply with a minimum fixed charge coverage ratio test, and contains other customary restrictive covenants that limit the credit parties’ ability and the ability of their subsidiaries to, among other things, incur liens, engage in a consolidation, merger and purchase or sale of assets, pay dividends, incur indebtedness, make advances, investments and loans, enter into affiliate transactions, issue equity interests or create subsidiaries and unrestricted subsidiaries.
The foregoing description of the New ABL is qualified in its entirety by reference to the full text of the New ABL, a copy of which is filed as Exhibit 10.1 to this Current Report and incorporated herein by reference.
Item 2.03
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 of this Current Report is incorporated by reference into this Item 2.03.
Item 7.01
Regulation FD Disclosure.
On May 14, 2026, the Company issued a press release announcing the closing of the Offering and the New ABL. The full text of the press release is attached as Exhibit 99.1 to this Current Report and incorporated herein by reference.
The information in Item 7.01 of this Current Report and Exhibit 99.1 attached hereto is being “furnished” and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section, nor shall it be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act, unless specifically identified therein as being incorporated by reference. The furnishing of information in this Current Report, including Exhibit 99.1, is not intended to, and does not, constitute a determination or admission by the Company that the information in this Current Report, including Exhibit 99.1, is material or complete, or that investors should consider this information before making an investment decision with respect to any securities of the Company, the Issuer or their affiliates.
The offer and sale of the Notes and the related guarantees have not been registered under the Securities Act, or any state securities laws, and unless so registered, these securities may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws. This Current Report shall not constitute an offer to sell, or the solicitation of an offer to buy, any of these securities or any other securities, nor shall there be any sale of these securities or any other securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful.
Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
Number
Description
4.1
Indenture, dated as of May 14, 2026, among Par Petroleum, LLC, the guarantors named therein and U.S. Bank Trust Company, National Association, as trustee.
4.2
Form of 7.375% Senior Notes due 2034 (included as Exhibit A to the Indenture filed as Exhibit 4.1).
10.1*
Amended and Restated Asset-Based Revolving Credit Agreement, dated as of May 14, 2026, by and among Par Pacific Holdings, Inc., as Holdings, Par Petroleum, LLC, Par Hawaii, LLC, Hermes Consolidated, LLC, Wyoming Pipeline Company LLC, Par Montana LLC, Par Rocky Mountain Midstream, LLC, U.S. Oil & Refining Co. and Par Hawaii Refining, LLC, as Borrowers, Wells Fargo Bank National Association, as Agent, Issuing Bank, and Swing Lender, the lenders party thereto, as the Lenders, and the other issuing banks party thereto, as Issuing Banks.
99.1
Press Release, dated May 14, 2026, announcing the closing of the Offering and the New ABL.
104
Cover Page Interactive Data File (embedded within the Inline XBRL document).
*
Certain schedules and similar attachments to this exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company undertakes to furnish supplementally a copy of any omitted schedule to the Securities and Exchange Commission upon request.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: May 14, 2026
PAR PACIFIC HOLDINGS, INC.
By:
/s/ Jeffrey R. Hollis
Jeffrey R. Hollis
Senior Vice President, General Counsel and Secretary
EX-4.1
EX-4.1
Filename: d176382dex41.htm · Sequence: 2
EX-4.1
Exhibit 4.1
Execution Version
INDENTURE
Dated as of May 14, 2026
Among
PAR PETROLEUM, LLC,
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO,
and
U.S. BANK TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee, Paying Agent, Registrar, Transfer Agent and Authenticating Agent,
7.375% SENIOR NOTES DUE 2034
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01
Definitions
1
Section 1.02
Other Definitions
35
Section 1.03
[Reserved]
36
Section 1.04
Rules of Construction
36
Section 1.05
Acts of Holders
36
Section 1.06
Limited Condition Transactions; Measuring Compliance
37
ARTICLE 2
THE NOTES
Section 2.01
Form and Dating; Terms
39
Section 2.02
Execution and Authentication
40
Section 2.03
Registrar and Paying Agent
40
Section 2.04
Paying Agent to Hold Money in Trust
41
Section 2.05
Holder Lists
41
Section 2.06
Transfer and Exchange
41
Section 2.07
Replacement Notes
50
Section 2.08
Outstanding Notes
50
Section 2.09
Treasury Notes
50
Section 2.10
Temporary Notes
50
Section 2.11
Cancellation
51
Section 2.12
Defaulted Interest
51
Section 2.13
CUSIP and ISIN Numbers
51
ARTICLE 3
REDEMPTION
Section 3.01
Notices to Trustee and Registrar
51
Section 3.02
Selection of Notes to Be Redeemed or Purchased
52
Section 3.03
Notice of Redemption
52
Section 3.04
Effect of Notice of Redemption
53
Section 3.05
Deposit of Redemption or Purchase Price
53
Section 3.06
Notes Redeemed or Purchased in Part
53
Section 3.07
Optional Redemption
54
Section 3.08
Mandatory Redemption
54
Section 3.09
[Reserved]
54
Section 3.10
Offers to Repurchase by Application of Excess Proceeds
54
ARTICLE 4
COVENANTS
Section 4.01
Payment of Notes
56
i
Section 4.02
Maintenance of Office or Agency
56
Section 4.03
Reports and Other Information
57
Section 4.04
Compliance Certificate
58
Section 4.05
Taxes
59
Section 4.06
Stay, Extension and Usury Laws
59
Section 4.07
Limitation on Restricted Payments
59
Section 4.08
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
65
Section 4.09
Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock
67
Section 4.10
Asset Sales
72
Section 4.11
Transactions with Affiliates
74
Section 4.12
Liens
76
Section 4.13
Corporate Existence
77
Section 4.14
Offer to Repurchase Upon Change of Control
77
Section 4.15
Limitation on Guarantees of Indebtedness by Restricted Subsidiaries
79
Section 4.16
Discharge and Termination of Covenants
79
Section 4.17
[Reserved]
80
Section 4.18
[Reserved]
80
Section 4.19
Future Guarantees
80
ARTICLE 5
SUCCESSORS
Section 5.01
Merger, Consolidation or Sale of All or Substantially All Assets
80
Section 5.02
Successor Corporation Substituted
82
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01
Events of Default
82
Section 6.02
Acceleration
85
Section 6.03
Other Remedies
85
Section 6.04
Waiver of Past Defaults
85
Section 6.05
Noteholder Direction
85
Section 6.06
Control by Majority
87
Section 6.07
Limitation on Suits
87
Section 6.08
Rights of Holders of Notes to Receive Payment
87
Section 6.09
Collection Suit by Trustee
87
Section 6.10
Restoration of Rights and Remedies
87
Section 6.11
Rights and Remedies Cumulative
88
Section 6.12
Delay or Omission Not Waiver
88
Section 6.13
Trustee May File Proofs of Claim
88
Section 6.14
Priorities
88
Section 6.15
Undertaking for Costs
89
ii
ARTICLE 7
TRUSTEE
Section 7.01
Duties of Trustee
89
Section 7.02
Rights of Trustee
90
Section 7.03
Individual Rights of Trustee
91
Section 7.04
Trustee’s Disclaimer
91
Section 7.05
Notice of Defaults
91
Section 7.06
[Reserved]
91
Section 7.07
Compensation and Indemnity
91
Section 7.08
Replacement of Trustee
92
Section 7.09
Successor Trustee by Merger, Etc.
93
Section 7.10
Eligibility; Disqualification
93
Section 7.11
[Reserved]
93
Section 7.12
No Bonds Required
93
Section 7.13
Special, Punitive, Indirect or Consequential Damages
93
Section 7.14
Patriot Act
93
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01
Option to Effect Legal Defeasance or Covenant Defeasance
93
Section 8.02
Legal Defeasance and Discharge
93
Section 8.03
Covenant Defeasance
94
Section 8.04
Conditions to Legal or Covenant Defeasance
94
Section 8.05
Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions
95
Section 8.06
Repayment to Issuer
96
Section 8.07
Reinstatement
96
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01
Without Consent of Holders of Notes
96
Section 9.02
With Consent of Holders of Notes
97
Section 9.03
[Reserved]
99
Section 9.04
Revocation and Effect of Consents
99
Section 9.05
Notation on or Exchange of Notes
99
Section 9.06
Trustee to Sign Amendments, Etc.
99
Section 9.07
Payment for Consent
99
ARTICLE 10
GUARANTEES
Section 10.01
Guarantee
100
Section 10.02
Limitation on Guarantor Liability
101
Section 10.03
Execution and Delivery
101
Section 10.04
Subrogation
101
iii
Section 10.05
Benefits Acknowledged
102
Section 10.06
Release of Guarantees
102
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01
Satisfaction and Discharge
102
Section 11.02
Application of Trust Money
103
ARTICLE 12
[RESERVED]
ARTICLE 13
MISCELLANEOUS
Section 13.01
Electronic Signatures
104
Section 13.02
Notices
104
Section 13.03
[Reserved]
105
Section 13.04
Certificate and Opinion as to Conditions Precedent
105
Section 13.05
Statements Required in Certificate or Opinion
105
Section 13.06
Rules by Trustee and Agents
105
Section 13.07
No Personal Liability of Directors, Officers, Employees and Stockholders
105
Section 13.08
Governing Law, Submission to Jurisdiction
105
Section 13.09
Waiver of Jury Trial
106
Section 13.10
Force Majeure
106
Section 13.11
No Adverse Interpretation of Other Agreements
106
Section 13.12
Successors
106
Section 13.13
Severability
106
Section 13.14
Counterpart Originals
106
Section 13.15
Table of Contents, Headings, Etc.
106
Section 13.16
Entire Agreement
106
EXHIBITS
Exhibit A
Form of Note
Exhibit B
Form of Certificate of Transfer
Exhibit C
Form of Certificate of Exchange
Exhibit D
Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors
iv
INDENTURE, dated as of May 14, 2026, among Par Petroleum, LLC, a Delaware limited
liability company (the “Issuer” or the “Company”), the Guarantors (as defined herein) and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as paying agent (the
“Paying Agent”), registrar (the “Registrar”), transfer agent (the “Transfer Agent”) and authenticating agent (the “Authenticating Agent”).
W I T N E S S E T H
WHEREAS, the Issuer has duly authorized the creation of an issue of $500,000,000 aggregate principal amount of 7.375% Senior Notes due 2034
(the “Initial Notes”); and
WHEREAS, the Issuer and each of the Guarantors have duly authorized the execution and
delivery of this Indenture;
NOW, THEREFORE, the Issuer, the Guarantors, the Trustee, the Paying Agent, the Registrar, the Transfer Agent
and the Authenticating Agent agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND
INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the
Notes sold in reliance on Rule 144A.
“Acquired Indebtedness” means, with respect to any specified Person,
(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted
Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Restricted Subsidiary of such specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
“Additional Notes” means additional Notes (other than the Initial Notes) issued from time to time under this
Indenture in accordance with Sections 2.01, 2.02 and 4.09.
“Affiliate” of any specified Person
means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings,
the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
“Agent” means any of the Registrar, Paying Agent, Transfer Agent and Authenticating Agent.
“Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of (a) the present value at such Redemption Date of (i) the redemption price of such Note at
June 1, 2029 (such redemption price being set forth in Section 3.07(d) hereof), plus (ii) all required interest payments due on such Note through June 1, 2029 (excluding accrued but unpaid interest to the
Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) the principal amount of such Note.
-1-
Neither the Trustee nor any Agent shall have any duty or obligation to calculate or to
confirm any calculation of the Applicable Premium.
“Approved Commercial Bank” means a commercial bank with a
consolidated combined capital and surplus of at least $5,000,000,000.
“Applicable Procedures” means, with respect to
any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and/or Clearstream that apply to such transfer or exchange.
“Asset Sale” means:
(1) the sale, conveyance, lease, transfer or other disposition (which shall not include the issuance of Equity Interests),
whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Leaseback Transaction) of the Company or any of its Restricted Subsidiaries (each referred to in this definition as a
“disposition”); or
(2) the issuance or sale of Equity Interests of any Restricted Subsidiary (other
than Preferred Stock (including Disqualified Stock) of the Company or any Restricted Subsidiaries issued in compliance with Section 4.09), whether in a single transaction or a series of related transactions;
in each case, other than:
(a) any disposition of Cash Equivalents or Investment Grade Securities or obsolete, damaged or worn out equipment in the
ordinary course of business or otherwise unsuitable or unnecessary for use in the Company’s or its Subsidiaries’ business or any disposition of inventory or goods (or other assets) no longer used in the ordinary course of business, or
any disposition of property in connection with scheduled turnarounds, maintenance and equipment and facility updates;
(b)
the disposition of all or substantially all of the assets of the Company in a manner permitted pursuant to the provisions described in Section 5.01 hereof or any disposition that constitutes a Change of Control pursuant to
this Indenture;
(c) the making of any Restricted Payment that is permitted to be made, and is made, under
Section 4.07 hereof or any Permitted Investment;
(d) any disposition of assets or issuance or
sale of Equity Interests of any Restricted Subsidiary in any transaction or series of related transactions with an aggregate fair market value of less than the greater of $150.0 million and 3.5% of Total Assets at such time;
(e) any disposition of property or assets or issuance of securities (including Equity Interests) by a Restricted Subsidiary to
the Company or by the Company or a Restricted Subsidiary to another Restricted Subsidiary;
(f) (i) any trade or exchange
by the Company or any Restricted Subsidiary of the Company of properties or assets of any type for properties or assets of any type owned or held by another Person, including any disposition (which may include issuances) of some but not all of the
Equity Interests of a Restricted Subsidiary of the Company in exchange for assets or properties and either (x) after which the Person whose Equity Interests have been so disposed of continues to be a Restricted Subsidiary of the Company or
(y) if the Person whose Equity Interests have been so disposed does not continue to be a Restricted Subsidiary of the Company, the aggregate fair market value of all outstanding Investments owned by the Company and its Restricted Subsidiaries
in such Person will be deemed to be either an Investment made as of the time of such disposition that will reduce the amount available for Restricted Payments as set forth under Section 4.07 hereof or a Permitted Investment
under one or more clauses of the definition of Permitted Investments, as determined by the Company; provided that the fair market value of the properties or assets traded or exchanged by the Company or such Restricted Subsidiary of the
Company (together with any cash or Cash
-2-
Equivalents and liabilities assumed by such other Person) is reasonably equivalent to the fair market value of the properties or assets (together with any cash or Cash Equivalents) to be received
by the Company or such Restricted Subsidiary (together with any liabilities to be assumed by the Company or any Restricted Subsidiary) as determined in good faith by the Board of Directors or an Officer of the Company or, in the case of a trade or
exchange by a Restricted Subsidiary, that Restricted Subsidiary, and (ii) to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease or early termination of a lease, assignment or sub-lease or early
termination of a sub-lease, of any real or personal property in the ordinary course of business or any lease or early termination of a lease of real property in connection with convenience stores, midstream
assets or the development of a hydrogen facility;
(h) any issuance or disposition of Equity Interests in, or Indebtedness
or other securities of, an Unrestricted Subsidiary;
(i) Events of Loss, but solely with respect to the requirements under
Section 4.10(a)(1) or (2), or the granting of Liens not prohibited by this Indenture;
(j)
sales of accounts receivable, or participations therein, in connection with any Receivables Facility;
(k) the disposition,
sale or discount of inventory, equipment, services, accounts receivable, notes receivable, environmental credits, biodiesel credits or renewable fuel credits (including renewable identification numbers) in the ordinary course of business or the
conversion of accounts receivable to notes receivable, including sales of inventory pursuant to, or arising from or related to Intermediation Agreements and sales of renewable identification numbers pursuant to the RINs Master Agreement;
(l) the disposition of any property or assets after the Issue Date in connection with any financing transaction, including Sale
and Leaseback Transactions, asset securitizations and/or synthetic leases not prohibited by this Indenture;
(m) (i) the
licensing or sublicensing of intellectual property or other general intangibles in the ordinary course of business, other than the licensing of intellectual property on a long-term basis, or (ii) the abandonment of intellectual property rights
in the ordinary course of business, which are no longer useful to the conduct of the business of the Company and its Restricted Subsidiaries taken as a whole, as determined in good faith by the Company;
(n) any surrender or waiver of contract rights or the settlement, release or surrender of contract rights or other litigation
claims in the ordinary course of business;
(o) (i) any sale of Specified Inventory by the Company or its Restricted
Subsidiaries, in each case in the ordinary course of business, (ii) any sale of Specified Inventory by the Company or its Restricted Subsidiaries pursuant to the terms of, or related to, any Intermediation Agreement or Hedge Agreement permitted
under, and existing on or entered into after the date of, this Indenture and (iii) any trade or exchange by the Company or any Restricted Subsidiary of any Specified Inventory for similar products owned or held by another Person in the ordinary
course of business; provided that for purposes of clause (iii) the fair market value of the properties traded or exchanged by the Company or any Restricted Subsidiary is reasonably equivalent, in the aggregate for any transaction or
series of related transactions, to the fair market value of the properties to be received by the Company or any Restricted Subsidiary (as determined in good faith by the Company or, in the case of a trade or exchange by a Restricted Subsidiary, that
Restricted Subsidiary);
(p) dispositions in connection with ordinary course refurbishments or exchanges of catalysts,
including platinum or similar precious metals and related products, necessary or useful for the operation of refineries;
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(q) unwinding of any Hedging Obligations of the type permitted under
Section 4.09(b)(10);
(r) disposition of investments in Joint Ventures to the extent required by,
or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(s) any disposition of any Specified Assets in connection with the decommissioning thereof;
(t) any dispositions pursuant to buy-sell arrangements related to Specified Inventory
in the ordinary course of business and not for speculative purposes;
(u) Permitted Renewable Fuel Facility Dispositions;
and
(v) any disposition of any assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests
in such Restricted Subsidiary are disposed of) (i) acquired in connection with any acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Company and its Restricted
Subsidiaries and/or (ii) made to obtain the approval of any applicable antitrust or other regulatory authority in connection with an acquisition or other Investment; provided that, with respect to any such acquisition or other
Investment, the aggregate fair market value of the assets disposed of in reliance on this clause (v) shall not exceed 20% of the aggregate consideration paid by the Company and its Restricted Subsidiaries in respect of such acquisition or other
Investment.
“Asset Sale Offer” has the meaning set forth in Section 4.10.
“Authenticating Agent” has the meaning set forth in the preamble hereto.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Board of Directors” means with respect to a corporation, the board of directors of the corporation, and with respect to
any other Person, the board or committee of such Person, or board of directors of the general partner or general manager of such Person serving a similar function.
“Borrowing Base” means, with respect to borrowings under the Senior Credit Facilities and any amendment to and/or
modification or replacement of the foregoing in the form of an asset-based credit facility, in each case with lenders that include commercial banks regulated by the U.S. Office of the Comptroller of the Currency, the maximum amount determined
or re-determined by the lenders thereunder as the aggregate lending value to be ascribed to the assets of the Company and its Restricted Subsidiaries against which such lenders are prepared to provide loans,
letters of credit or other Indebtedness to the credit parties, using customary practices and standards for determining asset-based borrowing base loans and which are generally applied to borrowers in Similar Businesses by commercial lenders, as
determined on such other occasions as may be required or provided for therein.
“Business Day” means each day which is
not a Legal Holiday.
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers
on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
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“Capitalized Lease Obligation” means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with
GAAP; provided, that notwithstanding any changes in GAAP or application of GAAP after March 30, 2018, any lease of the Issuer or its Subsidiaries that would be characterized as an operating lease under GAAP in effect on March 30, 2018, or
as applied on March 30, 2018 (whether such lease is entered into before or after March 30, 2018) shall not constitute a capital lease under the Indenture and the obligations thereunder shall not constitute Capitalized Lease Obligations as
a result of such changes in GAAP or application thereof.
“Captive Insurance Subsidiary” means any Subsidiary of the
Company that is an authorized insurer under the laws of its jurisdiction of organization.
“Cash Equivalents” means:
(1) United States dollars;
(2) euro, or any national currency of any participating member state of the EMU; and local currencies held by the Company and
its Restricted Subsidiaries from time to time in the ordinary course of business;
(3) securities issued or directly and
fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of
24 months or less from the date of acquisition;
(4) certificates of deposit, time deposits and eurodollar time deposits
with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than
$250.0 million in the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks;
(5) repurchase obligations for underlying securities of the types described in clauses (3) and (4) above entered into with
any financial institution meeting the qualifications specified in clause (4) above;
(6) commercial paper rated at
least P-1 by Moody’s or at least A-1 by S&P and in each case maturing within 24 months after the date of creation thereof and Indebtedness or Preferred Stock
issued by a Person with a rating of “A” or higher by S&P or “A2” or higher by Moody’s with maturities of 24 months or less from the date of acquisition thereof;
(7) marketable short-term money market and similar securities having a rating of at least
P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent
rating from another Rating Agency) and in each case maturing within 24 months after the date of creation thereof;
(8)
investment funds investing 95% of their assets in securities of the types described in clauses (1) through (7) above;
(9) marketable direct obligations issued by any state, commonwealth or territory of the United States or any political
subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition thereof;
(10) Indebtedness or Preferred Stock issued by Persons with a rating of “A” or higher from S&P or
“A2” or higher from Moody’s with maturities of 24 months or less from the date of acquisition thereof;
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(11) Investments with average maturities of 24 months or less from the date
of acquisition thereof in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s;
(12) securities issued or directly and fully guaranteed by the sovereign nation or any agency thereof (provided that the
full faith and credit of such sovereign nation is pledged in support thereof) in which the Company or any of its Restricted Subsidiaries is organized or is conducting business having maturities of not more than one year from the date of acquisition
thereof; and
(13) Investments of the type and maturity described above of foreign obligors, which Investments or obligors
satisfy the requirements and have ratings described in such clauses and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business
conducted by any Restricted Subsidiary organized in such jurisdiction and not for speculative purposes.
Notwithstanding the foregoing,
Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above, provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as
practicable and in any event within ten Business Days following the receipt of such amounts.
“Change of Control” means
the occurrence of any of the following:
(1) the sale, lease or transfer, in one or a series of related transactions, of
all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person or Persons; or
(2) the consummation of any transaction (including any merger or consolidation) the result of which is that any
“person” (as such term is used in Section 13(d)(3) of the Exchange Act) becomes the “beneficial owner” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly through one or more intermediaries, of more than 50% of the voting power of the outstanding Voting Stock of Holdings or the Company or any of its
direct or indirect parent companies holding directly or indirectly 100% of the total voting power of the Voting Stock of Holdings or the Company;
provided, that a Change of Control shall not be deemed to occur (a) if the Company or Holdings becomes a direct or indirect
Wholly-Owned Subsidiary of a parent company (a “Parent Entity”), or a parent company acquires all of substantially all of the assets of the Company and its Subsidiaries, taken as a whole, and (b) immediately following that
transaction, no Person (other than a Parent Entity) is the beneficial owner, directly or indirectly, of 50% or more of the total voting power of the Voting Stock of such Parent Entity (or its general partner, if applicable); and
provided further, however, that a transaction in which the Company becomes a Subsidiary of another Person (other than a Person
that is an individual) shall not constitute a Change of Control if (a) the shareholders of the Company immediately prior to such transaction “beneficially own” (as such term is defined in
Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly through one or more intermediaries, at least a majority of the voting power of the
outstanding Voting Stock of the Company, immediately following the consummation of such transaction and (b) immediately following the consummation of such transaction, no “person” (as such term is defined above) , other than such
other Person (but including the holders of the Equity Interests of such other Person), “beneficially owns” (as such term is defined above), directly or indirectly through one or more intermediaries, more than 50% of the voting power of
the outstanding Voting Stock of Holdings or the Company.
“CIS Dispositions” means any sale, lease, conveyance or other
disposition of properties or assets by the Company or any of its Restricted Subsidiaries to any Captive Insurance Subsidiary.
“Clearstream” means Clearstream Banking, Société Anonyme.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” has the meaning set forth in the preamble hereto until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
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“Consolidated Depreciation and Amortization Expense” means with respect
to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees, debt issuance costs, commissions and fees and expenses of such Person and its Restricted Subsidiaries for
such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated Interest Expense”
means, for any period, the sum (determined without duplication) of the aggregate gross interest expense for such period, whether paid or accrued, in each case solely to the extent treated as an interest expense under GAAP: (1) amortization of
deferred financing fees, debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers’ acceptance financings, and net payments (if any) pursuant to any Hedge Agreements; (2) any interest expense on Indebtedness of another Person that is guaranteed by the Issuer or
any Restricted Subsidiary or secured by a Lien on assets of the Issuer or any Restricted Subsidiary (whether or not such guarantee or Lien is called upon); (3) capitalized interest; and (4) the portion of any payments or accruals under
Capitalized Lease Obligations allocable to interest expense, plus the portion of any payments or accruals under synthetic leases allocable to interest expense whether or not the same constitutes interest expense under GAAP;
in each case, excluding amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses;
less interest income for such period.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income, of such Person
and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without duplication,
(1) any after-tax effect of extraordinary,
non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses (including relating to any issuance of Equity Interests, Investment, acquisition, disposition,
recapitalization or issuance, repayment, refinancing, amendment or modification of Indebtedness (in each case, whether or not successful), and any fees, expenses, charges or change in control payments related to the offer and sale of the Notes and
transactions related thereto), severance, relocation costs and curtailments or modifications to pension and post-retirement employee benefit plans shall be excluded,
(2) the cumulative effect of a change in accounting principles or as a result of the adoption or modification of accounting
principles during such period shall be excluded,
(3) any after-tax effect of
income (loss) from disposed, abandoned or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued operations shall be excluded,
(4) any after-tax effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions or abandonments or the sale or other disposition of any Capital Stock of any Person other than in the ordinary course of business, as determined in good faith by the Company, shall be excluded,
(5) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Company shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to
the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period,
(6)
effects of adjustments (including the effects of such adjustments pushed down to the Company and its Restricted Subsidiaries) in the inventory, property and equipment, software, goodwill, other intangible assets, deferred revenue and debt line items
in such Person’s consolidated financial statements pursuant to GAAP in relation to any consummated issuance of Equity Interests, Investment, acquisition, disposition, recapitalization or issuance, repayment, refinancing, amendment or
modification of Indebtedness (in each case, whether or not successful), and any fees, expenses, charges or change in control payments related to the offer and sale of the Notes and transactions related thereto or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,
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(7) any after-tax effect of income
(loss) from the early extinguishment of (i) Indebtedness, (ii) Hedging Obligations or (iii) other derivative instruments shall be excluded,
(8) any impairment charge or asset write-off or write-down, including impairment
charges or asset write-offs or write-downs related to intangible assets, long-lived assets or investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant to GAAP, and the amortization of
intangibles arising pursuant to GAAP shall be excluded,
(9) any non-cash
compensation charge or expense, including any such charge arising from grants of stock appreciation or similar rights, stock options, restricted stock or other rights, shall be excluded,
(10) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any
acquisition, Investment, Restricted Payment, Asset Sale, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction
consummated prior to the Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be
excluded,
(11) accruals and reserves that are established or adjusted that are so required to be established or adjusted
as a result of any issuance of Equity Interests, Investment, acquisition, disposition, recapitalization or issuance, repayment, refinancing, amendment or modification of Indebtedness (in each case, whether or not successful), and any fees, expenses,
charges or change in control payments related to the offer and sale of the Notes and transactions related thereto in accordance with GAAP shall be excluded, and
(12) the amount of Permitted Holdings Payments shall reduce Consolidated Net Income to the extent not already reducing such Net
Income.
In addition, to the extent not already included in the Net Income of such Person and its Restricted Subsidiaries, notwithstanding
anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from (i) business interruption insurance (so long as the Company has made a determination that there exists reasonable evidence
that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (a) not denied by the applicable carrier in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such
evidence (with a deduction for any amount so added back to the extent denied by the applicable carrier in writing within 180 days or not so reimbursed within 365 days)) and (ii) reimbursements of any expenses and charges that are covered by
indemnification or other reimbursement provisions in connection with any Permitted Investment or any sale, conveyance, transfer or other disposition of assets permitted under this Indenture.
Notwithstanding the foregoing, for the purpose of Section 4.07 hereof only (other than clause (3)(d) of
Section 4.07(a) hereof), there shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of Restricted Investments made by the Company and its Restricted Subsidiaries, any
repurchases and redemptions of Restricted Investments from the Company and its Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted Investments by the Company or any of its Restricted Subsidiaries, any sale of
the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted under clause (3)(d) of
Section 4.07(a) hereof.
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“Consolidated Secured Debt Ratio” means, as of any date of determination,
the ratio of (1) Consolidated Total Indebtedness of the Company and its Restricted Subsidiaries that is secured by Liens as of the end of the most recent fiscal period for which internal financial statements are available immediately preceding
the date on which such event for which such calculation is being made shall occur to (2) the Company’s EBITDA for the most recently ended four full fiscal quarters for which internal financial statements are available immediately
preceding the date on which such event for which such calculation is being made shall occur, in each case with such pro forma adjustments to Consolidated Total Indebtedness and EBITDA as are appropriate and consistent with the pro
forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.
“Consolidated Total Debt
Ratio” means, as of any date of determination, the ratio of (1) Consolidated Total Indebtedness of the Company and its Restricted Subsidiaries as of the end of the most recent fiscal period for which internal financial statements are
available immediately preceding the date on which such event for which such calculation is being made shall occur to (2) the Company’s EBITDA for the most recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such event for which such calculation is being made shall occur, in each case with such pro forma adjustments to Consolidated Total Indebtedness and EBITDA as are appropriate and
consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.
“Consolidated Total Indebtedness” means, as of any date of determination, an amount equal to (a) the sum of
(1) the aggregate amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, Obligations in respect of Capitalized Lease Obligations (but
excluding for the avoidance of doubt, all obligations relating to Receivables Facilities) and (2) the aggregate amount of all outstanding Disqualified Stock of the Company and all Preferred Stock of its Restricted Subsidiaries on a consolidated
basis, with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in
accordance with GAAP minus (b) the aggregate amount of unrestricted cash and Cash Equivalents held by such Person as of such date. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock or
Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which
Consolidated Total Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be
determined reasonably and in good faith by the Company.
“Contingent Obligations” means, with respect to any Person,
any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent,
(1) to purchase any such primary obligation or any property constituting direct or indirect security therefor,
(2) to advance or supply funds
(a) for the purchase or payment of any such primary obligation, or
(b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, or
(3) to purchase property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Corporate Trust Office of the Registrar” means the address of the Registrar specified in
Section 13.02 hereof or such other address as to which the Registrar may give notice to the Holders and the Issuer.
“Corporate Trust Office of the Trustee” means the address of the Trustee specified in
Section 13.02 hereof or such other address as to which the Trustee may give notice to the Holders and the Issuer.
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“Credit Facilities” means, with respect to the Company or any of its
Restricted Subsidiaries, one or more debt facilities, including the Senior Credit Facilities, or other financing arrangements (including, without limitation, factoring programs, commercial paper facilities or indentures) providing for revolving
credit loans, term loans, letters of credit or other long-term indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements,
modifications, extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments
thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings is
permitted under Section 4.09 hereof) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
“Custodian” means U.S. Bank Trust Company, National Association, as custodian with respect to the Notes in global form, or
any successor entity thereto.
“Customary Recourse Exceptions” means, with respect to any Non-Recourse Debt of an Unrestricted Subsidiary or Joint Venture, exclusions from the exculpation provisions with respect to such Non-Recourse Debt for the voluntary
bankruptcy of such Unrestricted Subsidiary or Joint Venture, fraud, misapplication of cash, environmental claims, waste, willful destruction and other circumstances customarily excluded by lenders from exculpation provisions or included in separate
indemnification agreements in non-recourse financings.
“Default” means any
event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Definitive
Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06(c) hereof, substantially in the form of Exhibit A hereto, except
that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified
in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
“Derivative Instrument” with respect to a Person, means any contract, instrument or other right to receive payment or
delivery of cash or other assets to which such Person or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in the Notes (other than a Regulated Bank, an Initial Purchaser or its
Affiliate or Screened Affiliate) is a party (whether or not requiring further performance by such Person), the value and/or cash flows of which (or any material portion thereof) are materially affected by the value and/or performance of the Notes
and/ or the creditworthiness of the Issuer and/or any one or more of the Guarantors (the “Performance References”).
“Designated Non-cash Consideration” means the fair market value of non-cash consideration received by the Company or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant
to an Officer’s Certificate, setting forth the basis of such valuation, executed by the principal financial officer of the Company, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on
such Designated Non-cash Consideration.
“Designated Preferred Stock” means
Preferred Stock of the Company or any parent corporation thereof (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or
any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate executed by the principal financial officer of the Company or the applicable parent corporation thereof, as the case may be, on
the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (3) of Section 4.07(a) hereof.
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“Disqualified Stock” means, with respect to any Person, any Capital Stock
of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a
change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior
to the date 91 days after the earlier of the maturity date of the Notes or the date the Notes are no longer outstanding (in each case other than in exchange for Equity Interests of the Company (other than Disqualified Stock)); provided,
however, that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified
Stock; provided, further, however, that if such Capital Stock is issued to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period
(1) increased (without duplication) by the following:
(a) provision for taxes based on income or profits or capital gains, including, without limitation, state, franchise and
similar taxes and foreign withholding taxes (including penalties and interest related to such taxes or arising from tax examinations) of such Person paid or accrued during such period to the extent deducted (and not added back) in computing
Consolidated Net Income; plus
(b) Fixed Charges of such Person for such period (including (x) net losses on
Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (y) costs of surety bonds in connection with financing activities, in each case, to the extent included in Fixed Charges),
together with items excluded from the definition of “Consolidated Interest Expense” to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus
(c) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and
not added back) in computing Consolidated Net Income; plus
(d) any expenses or charges (other than depreciation or
amortization expense) related to any Equity Offering, Permitted Investment, Restricted Payment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Indenture (including a refinancing thereof
or an amendment, modification or waiver thereto) (whether or not successful), including (i) such fees, expenses or charges related to the offering of the Notes and (ii) any amendment or other modification of the Notes, and, in each case,
deducted (and not added back) in computing Consolidated Net Income; plus
(e) the amount of any restructuring
charges, integration costs or other business optimization expenses or reserves deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in
connection with acquisitions after the Issue Date and costs related to the closure and/or consolidation of facilities; plus
(f) any other non-cash charges (including any write offs or write downs, any non-cash change in market value of inventory or inventory repurchase obligations or any non-cash deferral of gross profit on finished product sales) reducing Consolidated Net
Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future
period shall be subtracted from EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus
(g) the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of
third parties in any non-Wholly-Owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income; plus
(h) to the extent Consolidated Net Income has been reduced thereby, all Permitted Holdings Payments paid with respect to such
period; plus
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(i) the amount of net cost savings projected by the Company in good faith to
be realized as a result of specified actions taken or initiated during or prior to such period (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period), net of the amount of actual
benefits realized during such period from such actions; provided that (x) such cost savings are reasonably identifiable and factually supportable, (y) such actions have been or are taken no later than 24 months after the Issue Date
and (z) the aggregate amount of cost savings added pursuant to this clause (i) shall not exceed the greater of $40.0 million and 1.0% of Total Assets at such time for any four consecutive quarter period (which adjustments may be
incremental to pro forma cost savings adjustments made pursuant to the definition of “Fixed Charge Coverage Ratio”); plus
(j) the amount of loss or discount on sale of receivables and related assets to the Receivables Subsidiary in connection with a
Receivables Facility to the extent deducted (and not added back) in such period in computing Consolidated Net Income; plus
(k) any net loss from disposed or discontinued operations to the extent deducted (and not added back) in such period in
computing Consolidated Net Income; plus
(l) the amount of expenses, charges or losses with respect to liability or
casualty events to the extent deducted (and not added back) in such period in computing Consolidated Net Income and to the extent (i) covered by insurance and actually reimbursed (other than proceeds received from business interruption
insurance to the extent already included in the Consolidated Net Income of such Person) or (ii) so long as a determination has been made in good faith by the Company that a reasonable basis exists that such amount shall in fact be reimbursed by
an insurer that has a rating of at least “A” or higher by S&P or “A2” or higher by Moody’s to the extent it is (x) not denied by the applicable carrier (without any right of appeal thereof) within 180 days
(with a deduction in the applicable future period for any amount so added back to the extent denied within such 180 days) and (y) in fact reimbursed within 365 days of such determination (with a deduction in the applicable future period for any
amount so added back to the extent not so reimbursed within such 365 days); plus
(m) any costs or expenses incurred
by the Company or a Restricted Subsidiary to the extent deducted (and not added back) in such period in computing Consolidated Net Income pursuant to any management equity plan or equity incentive plan or any other management or employee benefit
plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Equity Interest of the
Company (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in clause (3) of Section 4.07(a) hereof;
(2) decreased by (without duplication) (a) non-cash gains increasing Consolidated
Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced EBITDA in any prior period and
(b) any net income from disposed or discontinued operations;
(3) increased or decreased by (without duplication):
(a) any unrealized net loss or gain included in Consolidated Net Income resulting in such period from Hedging Obligations
and the application of Financial Accounting Standards Codification No. 815 - Derivatives and Hedging; plus or minus, as applicable, and
(b) any net loss or gain resulting in such period from currency translation losses or gains related to currency remeasurements
of Indebtedness (including any net loss or gain resulting from hedge agreements for currency exchange risk and revaluations of intercompany balances);
(4) increased or decreased by (without duplication), as applicable, any adjustments resulting from the application of Financial
Accounting Standards Codification No. 460-Guarantees; and
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(5) increased or decreased by (without duplication) any change in fair value
of any catalyst lease obligations.
“EMU” means economic and monetary union as contemplated in the Treaty on European
Union.
“Environmental and Necessary Capex” means capital expenditures to the extent deemed reasonably necessary, as
determined by the Company, in good faith and pursuant to prudent judgment, that are required by applicable law (including to comply with environmental laws or permits) or are undertaken for environmental, health and safety reasons.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding
any debt security that is convertible into, or exchangeable for, Capital Stock.
“Equity Offering” means any public or
private sale of common stock (or equivalent equity interests) or Preferred Stock of the Company or any of its direct or indirect parent companies (excluding Disqualified Stock), other than:
(1) public offerings with respect to the Company’s or any direct or indirect parent company’s common stock
registered on Form S-8;
(2) issuances to any Subsidiary of the Company; and
(3) any such public or private sale that constitutes an Excluded Contribution.
“Euro” means the single currency of participating member states of the EMU.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear system.
“Event of Loss” means, with respect to any property or asset of the Company or any Restricted Subsidiary, (a) any
damage to such property or asset that results in an insurance settlement with respect thereto on the basis of a total loss or a constructive or compromised total loss or (b) the confiscation, condemnation or requisition of title to such
property or asset by any government or instrumentality or agency thereof. An “Event of Loss” shall be deemed to occur as of the date of the insurance settlement, confiscation, condemnation or requisition of title, as applicable.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated
thereunder.
“Excluded Contribution” means net cash proceeds, marketable securities or Qualified Proceeds received by
the Company from:
(1) contributions to its common equity capital, and
(2) the sale (other than to a Subsidiary of the Company or to any management equity plan or stock incentive plan or any other
management or employee benefit plan or agreement of the Company) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Company,
in each case after the Issue Date and designated as Excluded Contributions pursuant to an Officer’s Certificate executed by the
principal financial officer of the Company on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be.
“fair market value” means, with respect to any asset or liability, the fair market value of such asset or liability as
determined by the Company in good faith.
“Fixed Charge Coverage Ratio” means, with respect to any Person for any
period, the ratio of EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the Company or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness
(other than Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and
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has not been replaced) or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but
prior to or simultaneously with the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Fixed Charge Coverage Ratio Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving
pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the
applicable four-quarter period.
For purposes of making the computation referred to above, Investments, Restricted Payments, acquisitions,
dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by the Company or any of its Restricted Subsidiaries during the four-quarter reference period or subsequent to such reference
period and on or prior to or simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a pro forma basis assuming that all such Investments, Restricted Payments, acquisitions, dispositions, mergers,
consolidations and disposed operations (and the change in any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period. If since the beginning of such period
any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger,
consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition,
disposition, merger, consolidation or disposed operation had occurred at the beginning of the applicable four-quarter period.
For
purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of
the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a
pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined
at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the
Company may designate. Any such pro forma calculation may include (1) any adjustments calculated in accordance with Regulation S-X under the Securities Act, (2) any adjustments calculated to
give effect to any Pro Forma Cost Savings and/or (3) any adjustments used in connection with the calculation of “Adjusted EBITDA” as set forth under the caption “Summary-Summary Historical Consolidated Financial and Other
Data-EBITDA, EBITDA (excluding special items) and Adjusted EBITDA” in the Offering Memorandum to the extent such adjustments, without duplication, continue to be applicable to such four-quarter period.
“Fixed Charges” means, with respect to any Person for any period, the sum of:
(1) Consolidated Interest Expense;
(2) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred
Stock during such period; and
(3) all cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Disqualified Stock during such period.
“Foreign Subsidiary” means, with respect to any
Person, any Restricted Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof and any Restricted Subsidiary of such Foreign Subsidiary.
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“GAAP” means generally accepted accounting principles in the United
States which are in effect on the Issue Date.
“Global Note Legend” means the legend set forth in
Section 2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes,
substantially in the form of Exhibit A hereto, issued in accordance with Section 2.01, 2.06(b) or 2.06(d) hereof.
“Government Securities” means securities that are:
(1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the Issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such
custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt.
“guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of
business), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations.
“Guarantee” means the guarantee by each Guarantor of the Issuer’s Obligations under this Indenture.
“Guarantor” means each Person that guarantees the Notes in accordance with the terms of this Indenture and its successors
and assigns, until released from its obligations under its Guarantee in accordance with the terms of this Indenture.
“Hedge
Agreements” means:
(1) interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and other agreements or arrangements designed for the purpose of fixing, hedging, mitigating or swapping interest rate risk either generally or under specific contingencies;
(2) foreign exchange contracts, currency swap agreements and other agreements or arrangements designed for the purpose of
fixing hedging, mitigating or swapping foreign currency exchange rate risk either generally or under specific contingencies;
(3) commodity swap agreements, commodity cap agreements or commodity collar agreements designed for the purpose of fixing,
hedging, mitigating, managing or swapping commodity risk, responding to commodity market conditions and/or implementing optimization strategies either generally or under specific contingencies;
(4) any swap, cap, collar, floor, put, call, option, future, other derivative, spot purchase or sale, forward purchase or sale,
buy/sell, supply and/or off-take, transportation agreement, storage agreement or other commercial or trading agreement in or involving Specified Inventory or electricity, or any other energy, weather or
emissions related commodity (including any crack spread), or any prices or price indexes relating to any of the foregoing commodities, or any economic index or measure of economic risk or value, or other benchmark against which payments or
deliveries are to be made (including any combination of such transactions), in each case that is designed for the purpose of fixing, hedging, mitigating, managing or swapping risk relating to such commodities either generally or under specific
contingencies (including any combination of the foregoing); and
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(5) any other hedging agreement or other arrangement, in each case that is
designed to provide protection against fluctuations in the price of crude oil, gasoline, other refined products or natural gas or any adverse change in the creditworthiness of any counterparty;
provided that, for the avoidance of doubt, the above clauses (1)-(5) shall include any and all such transactions (and any related
confirmations) that are subject to the terms and conditions of, or governed by, any form of master, framework or umbrella agreement, including any obligations or liabilities under such master, framework or umbrella agreement.
“Hedging Obligations” means any and all Indebtedness, debts liabilities and other obligations, howsoever arising, of the
Company and/or any Guarantor to the counterparties under the Hedge Agreements of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising, under the Hedge Agreements and all other obligations owed by the Company and the Guarantors to the counterparties under the Hedge Agreements, including any guarantee obligations in respect
thereof.
“Holder” means the Person in whose name a Note is registered on the Registrar’s books.
“Holdings” means Par Pacific Holdings, Inc., a Delaware corporation.
“Indebtedness” means, with respect to any Person, without duplication:
(1) any indebtedness (including principal and premium) of such Person, whether or not contingent:
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or,
without duplication, reimbursement agreements in respect thereof);
(c) representing the balance deferred and unpaid of the
purchase price of any property (including Capitalized Lease Obligations), except (i) any such balance that constitutes an accrued expense or trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of
business and (ii) any earn-out obligations until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid 30 days after becoming due and payable; or
(d) representing the net amount due under any Hedging Obligations;
in each case in this clause (1) if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
(2) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or
otherwise, on the obligations of the type referred to in clause (1) of a third Person (whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement of negotiable instruments for
collection in the ordinary course of business; and
(3) to the extent not otherwise included, the obligations of the type
referred to in clause (1) of a third Person secured by a Lien on any asset owned by such first Person, but only to the extent of the lesser of (x) the fair market value of the assets subject to such Lien and (y) the amount of such
Indebtedness;
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provided, however, that notwithstanding the foregoing, Indebtedness shall be
deemed not to include (a) Contingent Obligations; (b) obligations under or in respect of (i) any Intermediation Agreement or (ii) Receivables Facilities; (c) deferred or prepaid revenues;
(d) non-compete or consulting obligations incurred in connection with any acquisition; (e) reserves for deferred income taxes; (f) obligations with respect to prepayments received in the
ordinary course of business under operating agreements, development agreements, offtake agreements or similar arrangements; (g) any obligations in respect of appraisal rights and the settlement of any claims or actions (whether actual,
contingent or potential) with respect thereto to the extent of cash and cash equivalents set aside therefor; (h) any Indebtedness that has been defeased in accordance with GAAP or defeased pursuant to the deposit of cash or Government
Securities (in an amount sufficient to satisfy all such Indebtedness at fixed maturity or redemption, as applicable, and all payments of interest and premium, if any) in a trust or account created or pledged for the sole benefit of the holders of
such Indebtedness and subject to no other Liens, and the other applicable terms of the instrument governing such Indebtedness; (i) any obligation arising from any agreement providing for indemnities, guarantees, purchase price adjustments,
earn-outs holdbacks, contingency payment obligations based on the performance of the acquired or disposed assets or similar obligations (other than guarantees of Indebtedness) incurred by any Person in connection with the acquisition or disposition
of assets; and (j) any obligation in respect of buy-sell or similar arrangements related to renewable fuel credits (including renewable identification numbers and biodiesel credits).
For purposes of this definition, (i) the amount of any Indebtedness represented by a Guarantee or other similar instrument shall be the
lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Indebtedness, (ii) the amount of
any Indebtedness which is limited or is non-recourse to a Person or for which recourse is limited to an identified asset shall be valued at the lesser of (A) if applicable, the limited amount of such
obligations, and (B) if applicable, the fair market value of such assets securing such obligation, and (iii) earn-out and similar payment obligations shall be valued based upon the amount thereof if
any, required to be recorded on a balance sheet prepared in accordance with GAAP.
“Indenture” means this Indenture, as
amended or supplemented from time to time.
“Independent Financial Advisor” means an accounting, appraisal, investment
banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Company, qualified to perform the task for which it has been engaged.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Initial Notes” has the meaning set forth in the recitals hereto.
“Initial Purchasers” means MUFG Securities Americas Inc., BofA Securities, Inc., Wells Fargo Securities, LLC, Regions
Securities LLC, Truist Securities, Inc., U.S. Bancorp Investments, Inc., Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, Scotia Capital (USA) Inc., Barclays Capital Inc.
“Interest Payment Date” means June 1 and December 1 of each year to stated maturity.
“Intermediation Agreement” means any Specified Inventory under any Specified Inventory or other feedstock supply agreements
and assets under natural gas supply agreements, hydrogen supply agreements, offtake agreements or similar agreements or arrangements of the type described in clause (25) of Section 4.09(b), in each case, as the same
may be further amended, restated or modified from time to time.
“Intermediation Counterparty” means any counterparty
to an Intermediation Agreement with the Company or any Subsidiary and any permitted successor or assign of such counterparty.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.
“Investment Grade Securities” means:
(1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents);
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(2) debt securities or debt instruments with an Investment Grade Rating, but
excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries;
(3)
investments in any fund that invests exclusively in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution; and
(4) corresponding instruments in countries other than the United States customarily utilized for high quality investments.
“Investments” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in
the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers or suppliers, endorsements of negotiable instruments and documents, commission, travel and similar
advances to officers and employees, in each case made in the ordinary course of business, and any Hedging Obligations), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other
Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Company in the same manner as the other investments included in this definition to the extent such transactions involve the
transfer of cash or other property. For purposes of the definition of “Unrestricted Subsidiary” and Section 4.07 hereof:
(1) “Investments” shall include the portion (proportionate to the Company’s equity interest in such
Subsidiary) of the fair market value of the net assets of a Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:
(a) the Company’s “Investment” in such Subsidiary at the time of such redesignation; less
(b) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the fair market value of the net
assets of such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such transfer.
The amount of any Investment outstanding at any time
shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by the Company or a Restricted Subsidiary in respect of such Investment (other than
for the avoidance of doubt, Investments in Joint Ventures to extent credited under subclause (d)(ii) of clause (3) of the first paragraph of Section 4.07(a)(IV).
“Issue Date” means May 14, 2026, the date of original issuance of the Notes under this Indenture.
“Issuer” has the meaning set forth in the preamble hereto.
“Issuer’s Order” means a written request or order signed on behalf of the Issuer by an Officer of each of the Issuer,
who must be the principal executive officer, the principal financial officer, the president, the secretary, the treasurer, the principal accounting officer or an executive vice president of each of the Issuer, and delivered to the Trustee and to the
Authenticating Agent.
“Joint Venture” means any Person that is not a direct or indirect Wholly-Owned Subsidiary of the
Company in which the Company or any of its Restricted Subsidiaries makes any Investment.
“Legal Holiday” means a
Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York.
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“Lien” means, with respect to any asset, any mortgage, lien (statutory or
otherwise), pledge, hypothecation, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any precautionary or fallback security interest or lien, any option or other agreement to sell or give a security interest; provided that in no event shall (a) an operating lease be deemed to
constitute a Lien or (b) a precautionary financing statement respecting a lease not intended as a security agreement or an unauthorized financing statement be considered a Lien.
“Limited Recourse Purchase Money Indebtedness” means Indebtedness (including Capitalized Lease Obligations) of the Company
or any of our Restricted Subsidiaries (a) that is incurred to finance the purchase, construction, design, engineering procurement or management, or capital improvement of any capital assets prior to or no later than 90 days of such purchase or
commencement of construction or capital improvement, (b) that has an aggregate principal amount not in excess of 100% of the purchase, construction or capital improvement cost, (c) where the lenders or holders of such Indebtedness have no
recourse to the Company or any of the Restricted Subsidiaries except to the capital assets, construction or capital improvement (provided that the Company may provide unsecured guarantees at any time outstanding of up to the greater of
$200.0 million and an amount equal to 5.0% of Total Assets (at the time incurred) in aggregate principal amount of such Indebtedness of the Restricted Subsidiaries), and (d) that is not used to purchase a Person or assets in connection
with the purchase of a Person.
“Long Derivative Instrument” means a Derivative Instrument (i) the value of which
generally increases, and/ or the payment or delivery obligations under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases, and/or the payment or delivery obligations
under which generally increase, with negative changes to the Performance References.
“Moody’s” means
Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Income” means, with
respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends or distributions.
“Net Proceeds” means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect
of any Asset Sale, including any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of (i) the direct costs relating to such Asset
Sale and the sale or disposition of such Designated Non-cash Consideration, including legal, accounting and investment banking fees, and brokerage and sales commissions, any relocation expenses incurred as a
result thereof, taxes paid or payable by or on behalf of the Company, any of its Restricted Subsidiaries or any of their direct or indirect owners as a result thereof, (ii) amounts required to be applied to the repayment of principal, premium,
if any, and interest on Senior Indebtedness required (other than required by clause (1) of Section 4.10(b) hereof) to be paid as a result of such transaction and (iii) any deduction of appropriate amounts to be
provided by the Company or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Company or any of its Restricted Subsidiaries
after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction and any
amounts to be set aside in placed in escrow for adjustment in respect of the sale price of such properties or assets or for liabilities associated with such Asset Sale and retained by the Issuer or any of its Restricted Subsidiaries until such time
as such reserve is reversed or such escrow arrangement is terminated, in which case Net Proceeds shall include only the amount of the reserve so reversed or the amount returned to the Issuer or its Restricted Subsidiaries from such escrow
arrangement.
“Net Short” means, with respect to a Holder or beneficial owner, as of a date of determination, either
(i) the value of its Short Derivative Instruments exceeds the sum of (x) the value of its Notes plus (y) the value of its Long Derivative Instruments as of such date of determination or (ii) it is reasonably expected that
such would have been the case were a “Failure to Pay” or “Bankruptcy Credit Event” (each as defined in the 2014 ISDA Credit Derivatives Definitions) to have occurred with respect to the Issuer or any Guarantor immediately
prior to such date of determination.
“Non-Recourse Debt” means Indebtedness:
(1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute Indebtedness), except for Customary Recourse Exceptions, or (b) is directly or indirectly liable as a guarantor or otherwise, except in the case, for (i) Liens
permitted pursuant to clause (32) of the definition of “Permitted Liens” and (ii) any guarantee given solely to support such Liens, which guarantee is not recourse to the Company or any Restricted Subsidiary;
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(2) no default with respect to which (including any rights that the holders
of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Notes) of the Company or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its stated maturity; and
(3) as to which the lenders have been notified in writing that they will not have any recourse to the Capital Stock or assets
of the Company or any of its Restricted Subsidiaries except as contemplated by clause (32) of the definition of “Permitted Liens”.
For purposes of determining compliance with Section 4.09 hereof, in the event that any Non-Recourse Debt of any of the Company’s Unrestricted Subsidiaries ceases to be Non-Recourse Debt of such Unrestricted Subsidiary, such event will be deemed to
constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company.
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Notes” means the Initial Notes and more particularly means any Note authenticated and delivered under this Indenture.
For all purposes of this Indenture, the term “Notes” shall also include any Additional Notes that may be issued under a supplemental indenture.
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in
bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), penalties, fees, indemnifications,
reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities, including all Hedging Obligations, payable under the documentation governing any Indebtedness, including any Hedge Agreements.
“Offering Memorandum” means the offering memorandum, dated May 14, 2026, relating to the sale of the Initial Notes.
“Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief
Financial Officer, the Chief Operating Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Issuer.
“Officer’s Certificate” means a certificate signed on behalf of the Issuer by an Officer of the Issuer or on behalf
of a Guarantor by an Officer of such Guarantor, who must be the principal executive officer, the principal financial officer, the treasurer, the assistant treasurer, general counsel, principal accounting officer, or any vice president of any such
Person or the Issuer, that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means a written
opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Issuer or the Trustee.
“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the
Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
“Payment
Default” means a Default caused by a failure to pay principal of, or interest or premium, if any, the Notes.
“Permitted Asset Swap” means the concurrent purchase and sale or exchange of Related Business Assets or a combination of
Related Business Assets and cash or Cash Equivalents between the Company or any of its Restricted Subsidiaries and another Person; provided, that any cash or Cash Equivalents received must be applied in accordance with
Section 4.10 hereof.
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“Permitted Business” means either (1) any Similar Business, or
(2) any other business that generates gross income that constitutes “qualifying income” under Section 7704(d) of the Code.
“Permitted Business Investments” means Investments by the Issuer or any of its Restricted Subsidiaries in any Unrestricted
Subsidiary or in any Joint Venture, provided that:
(1) at the time of such Investment the Fixed Charge Coverage Ratio for
the Issuer is, and immediately after the making of such Investment would be, equal to or greater than 2.00 to 1.00, or
(2)
if such Unrestricted Subsidiary or Joint Venture has outstanding Indebtedness at the time of such Investment, either (a) all such Indebtedness is Non-Recourse Debt or (b) any such Indebtedness of
such Unrestricted Subsidiary or Joint Venture that is recourse to the Issuer or any of its Restricted Subsidiaries (which shall include, without limitation, all Indebtedness of such Unrestricted Subsidiary or Joint Venture for which the Issuer or
any of its Restricted Subsidiaries may be directly or indirectly, contingently or otherwise, obligated to pay, whether pursuant to the terms of such Indebtedness, by law or pursuant to any guarantee, including, without limitation, any
“claw-back”, “make-well” or “keep-well” arrangement) could, at the time such Investment is made, be incurred at that time by the Issuer and its Restricted Subsidiaries under the Fixed Charge Coverage Ratio test
set forth in Section 4.09(a); and
(3) such Unrestricted Subsidiary’s or Joint Venture’s activities
are not outside the scope of the Permitted Business.
“Permitted CIS Dispositions” means any CIS Disposition so long as
the aggregate fair market value of all such assets that are the subject of CIS Dispositions does not exceed $50.0 million.
“Permitted Holdings Payments” means the declaration and payment of dividends, distributions, or other payments (however
characterized) by the Issuer or any Restricted Subsidiary to Holdings to pay, in each case without duplication:
(a) franchise taxes,
excise taxes and other fees, taxes and expenses, in each case, to the extent required to maintain the existence of the Issuer and its Subsidiaries or for the Issuer and its Subsidiaries to conduct business in a jurisdiction;
(b) for any tax period (or portion thereof) with respect to which (x) the Issuer is treated as a pass-through or disregarded entity for
tax purposes, and of which any direct or indirect parent of the Issuer is an owner, member or partner (directly or through one or more entities that are treated as pass-through entities for tax purposes) or (y) the Issuer or any of its
Subsidiaries is a member of an affiliated, consolidated, combined, unitary or similar group that includes any direct or indirect parent of the Issuer, amounts equal to the amounts of federal, state and local taxes that would be owed (or estimated
would be owed) with respect to such tax period (or portion thereof), to the extent such taxes are attributable to the income, assets or activities of the Issuer or one or more of the Restricted Subsidiaries and, to the extent of the amount actually
received from its Unrestricted Subsidiaries, in amounts equal to the amounts that would be required to pay such taxes to the extent attributable to the income, assets or activities of such Unrestricted Subsidiaries; provided that in each case the
amount of such payments in respect of any fiscal year does not exceed the amount that the Company and the Restricted Subsidiaries would be required to pay in respect of federal, state and local taxes for such fiscal year as if the Issuer and the
Restricted Subsidiaries (and Unrestricted Subsidiaries, to the extent described above) computed and filed their tax returns on a stand-alone basis and did not take into account net operating losses or carryforwards or other tax attributes of any
direct or indirect parent of the Issuer or such parent’s Affiliates;
(c) so long as the Issuer is a member of an affiliated or
consolidated group for U.S. federal income tax purposes, payments made under the Tax Sharing Agreement effective June 22, 2022, or any successor or extended agreement, whether to Holdings or any Affiliate of Holdings and whether renewed as a
payment in lieu of taxes, compensation or indemnity, in each case without duplication with payments made under (a) or (b) above;
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(d) general corporate administrative, operating and overhead costs and expenses of any
direct or indirect parent of the Issuer that are attributable to the ownership and operation of the Issuer and its Subsidiaries;
(e) any
proceeds from the Asset Sale of Specified Assets;
(f) (x) salary, bonus and other benefits payable to employees, directors, officers and
managers of any direct or indirect parent of the Issuer and (y) indemnification claims made by employees, consultants, directors, officers and managers of the Issuer or any direct or indirect parent of the Issuer; and
(g) Fees and expenses other than to Affiliates of the Company related to any equity or debt offering.
“Permitted Investments” means:
(1) any Investment in the Company or any of its Restricted Subsidiaries;
(2) any Investment in cash and Cash Equivalents or Investment Grade Securities;
(3) any Investment by the Company or any of its Restricted Subsidiaries in a Person that is engaged (directly or through
entities that will be Restricted Subsidiaries) in a Similar Business if as a result of such Investment:
(a) such Person
becomes a Restricted Subsidiary; or
(b) such Person, in one transaction or a series of related transactions, is merged or
consolidated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary,
and, in each case, any Investment held by such Person; provided, that such Investment was not acquired by such Person in contemplation
of such acquisition, merger, consolidation or transfer;
(4) any Investment in securities or other assets, including
earnouts, not constituting cash, Cash Equivalents or Investment Grade Securities and received in connection with an Asset Sale made pursuant to the provisions of Section 4.10 hereof or any other disposition of assets not
constituting an Asset Sale;
(5) any Investment existing on, or made pursuant to binding commitments existing on, the Issue
Date, and any modifications, renewals or extensions that do not increase the amount of the Investment being modified, renewed or extended (as determined as of such date of modification, renewal or extension) unless the incremental increase in such
Investment is otherwise permitted under this Indenture;
(6) any Investment acquired by the Company or any of its
Restricted Subsidiaries:
(a) in exchange for any other Investment or accounts receivable held by the Company or any such
Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the Issuer of such other Investment or accounts receivable; or
(b) as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment or
other transfer of title with respect to any secured Investment in default;
(7) Hedging Obligations permitted under clause
(10) of Section 4.09(b) hereof;
(8) any Investment in a Similar Business having an
aggregate fair market value, taken together with all other Investments made pursuant to this clause (8) that are at that time outstanding, not to exceed the greater of (x) $200.0 million and (y) 5.0% of Total Assets at the time of such
Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value) provided, however, that, if any Investment pursuant to this clause (8) is made in
any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause
(1) above and shall cease to have been made pursuant to this clause (8) for so long as such Person continues to be a Restricted Subsidiary;
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(9) Investments the payment for which consists of Equity Interests
(exclusive of Disqualified Stock) of the Company, or any of its direct or indirect parent companies; provided, however, that such Equity Interests will not increase the amount available for Restricted Payments under clause (3) of
Section 4.07(a) hereof;
(10) guarantees of Indebtedness permitted under
Section 4.09 hereof;
(11) any transaction to the extent it constitutes an Investment that is
permitted and made in accordance with the provisions of Section 4.11(b) hereof (except transactions described in clauses (2), (5), (8), (9), (11), (16) and (17) of Section 4.11(b) hereof);
(12) Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment;
(13) Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this clause
(13) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), not to exceed the greater of $200.0 million
and 5.0% of Total Assets at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however, that if any Investment
pursuant to this clause (13) is made in any Person that is not the Company or a Restricted Subsidiary at the date of the making of such Investment and such Person becomes the Company or a Restricted Subsidiary after such date, such Investment
shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (13) for so long as such Person continues to be the Company or a Restricted Subsidiary;
(14) Investments relating to a Receivables Subsidiary that, in the good faith determination of the Company are necessary or
advisable to effect any Receivables Facility or any repurchase in connection therewith;
(15) advances to, or guarantees of
Indebtedness of, employees not in excess of $10.0 million outstanding at any one time, in the aggregate;
(16) loans
and advances to officers, directors and employees for business-related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices or to fund such
Person’s purchase of Equity Interests of the Company or any direct or indirect parent company thereof;
(17)
advances, loans or extensions of trade credit in the ordinary course of business by the Company or any of its Restricted Subsidiaries and commission, payroll, travel and similar advances to officers and employees of the Issuer or any of its
Restricted Subsidiaries that are expected at the time of such advance ultimately to be recorded as an expense in conformity with GAAP;
(18) any Investment in a Captive Insurance Subsidiary; provided that any such Investment results from a Permitted CIS
Disposition;
(19) stock, obligations or securities received in satisfaction of claims or judgments, in compromise or
settlement of debts created in the ordinary course of business, or by reason of a composition or readjustment of debts or reorganization of another Person;
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(20) any Investment in a Renewable Fuel Facility Entity; provided
that any such Investment results from a Permitted Renewable Fuel Facility Disposition;
(21) any Permitted Business
Investment in an unlimited amount; and
(22) Investments consisting of (a) Liens permitted pursuant to clause
(32) of the definition of “Permitted Liens” and (b) any guarantee given solely to support such Liens, which guarantee is not recourse to the Company or any Restricted Subsidiary.
“Permitted Liens” means, with respect to any Person:
(1) pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits
of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of
business;
(2) inchoate Liens and Liens imposed by law, such as carriers’, warehousemen’s, materialmen’s,
landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens, in each case for sums not yet overdue for a period of more than 30 days or being contested in good faith by appropriate proceedings or other Liens
arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in
accordance with GAAP;
(3) Liens for taxes, assessments or other governmental charges or levies not yet overdue for a
period of more than 30 days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of such
Person in accordance with GAAP;
(4) Liens in favor of Issuer of performance and surety bonds or bid bonds or with respect
to other regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
(5) survey exceptions, encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, environmental regulation, entitlement or other land use, or other
restrictions or limitations as to the use of real properties or Liens incidental, to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness and which do not in the
aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(6) Liens securing Indebtedness permitted to be incurred pursuant to clauses (4), (12), (20), (23) and (27) of
Section 4.09(b) hereof; provided that (a) Liens securing Indebtedness permitted to be incurred pursuant to clause (20) thereof extend only to Capital Stock and assets of Foreign Subsidiaries and
(b) Liens securing Indebtedness permitted to be incurred pursuant to clauses (23) and (27) thereof extend only to the assets so financed or purchased (and customary ancillary assets);
(7) Liens existing on the Issue Date;
(8) Liens on property or shares of stock or other assets of a Person at the time such Person becomes a Subsidiary;
provided, however, such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided further, however, that such Liens may not extend to any
other property or assets owned by the Company or any of its Restricted Subsidiaries;
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(9) Liens on property or other assets at the time the Company or a
Restricted Subsidiary acquired the property or such other assets, including any acquisition by means of a merger or consolidation with or into the Company or any of its Restricted Subsidiaries; provided, however, that such Liens are
not created or incurred in connection with, or in contemplation of, such acquisition; provided further, however, that the Liens may not extend to any other property owned by the Company or any of its Restricted Subsidiaries;
(10) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Company or another
Restricted Subsidiary permitted to be incurred in accordance with Section 4.09 hereof;
(11)
Liens securing Hedging Obligations permitted under clause (10) of Section 4.09(b) hereof;
(12) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in
respect of documentary letters of credit, bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(13) leases, subleases, licenses or sublicenses (including of intellectual property) existing on the Issue Date or granted to
others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries and do not secure any Indebtedness;
(14) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the
Company and its Restricted Subsidiaries in the ordinary course of business, consignment of goods, or any Intermediation Agreements;
(15) Liens in favor of the Issuer or any Guarantor;
(16) Liens on equipment of the Company or any of its Restricted Subsidiaries granted in the ordinary course of business to the
Company’s clients;
(17) Liens on accounts receivable and related assets incurred in connection with a Receivables
Facility;
(18) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancing,
refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (6) , (7) , (8), (9), (27), (28), (29), (30), (35) and (36) of this definition; provided,
however, that (a) such new Lien shall be limited to all or part of the same property (or class or type of property) that secured the original Lien (plus improvements on such property), and (b) the Indebtedness secured by such Lien
at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (6), (7), (8), (9), (27), (28), (29), (30), (35) and
(36) of this definition at the time the original Lien became a Permitted Lien under this Indenture, and (ii) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal
or replacement;
(19) (i) deposits made in the ordinary course of business to secure (x) liability to insurance
carriers and (y) reimbursement obligations with respect to surety, performance, release, appeal or similar bonds obtained in the ordinary course of business and (ii) Liens to secure obligations of the Company or its Restricted Subsidiaries
under the RINs Master Agreement or similar agreements;
(20) Liens arising out of judgments, attachments or awards for the
payment of money not constituting an Event of Default under clause (7) under Section 6.01(a) hereof so long as such Liens are adequately bonded and any appropriate legal proceedings that may have been duly initiated
for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;
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(21) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(22) Liens (i) of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business, and (iii) in favor of banking institutions
arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;
(23) Liens deemed to exist in connection with Investments in repurchase agreements permitted under
Section 4.09 hereof; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(24) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity
trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
(25) Liens that are contractual rights of set-off (i) relating to the
establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Company or any of its Restricted Subsidiaries to permit satisfaction of
overdraft or similar obligations incurred in the ordinary course of business of the Company and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Company or any of its
Restricted Subsidiaries in the ordinary course of business;
(26) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business;
(27) Liens (a) on Specified Inventory under any Specified Inventory or other feedstock supply agreements, and assets under
natural gas supply agreements, offtake agreements or similar agreements or arrangements of the type described in clause (25) of Section 4.09(b) hereof (whether or not the obligations under such agreements or
arrangements constitute Indebtedness), including Liens in favor of any Intermediation Counterparty pursuant to an Intermediation Agreement;
(28) Liens on assets constituting Environmental and Necessary Capex securing Indebtedness permitted under
Section 4.09 hereof;
(29) Liens to secure Indebtedness having an aggregate principal amount
which, when added together with all other Indebtedness secured by Liens incurred pursuant to this clause (29) and then outstanding, does not exceed the greater of $200.0 million and 5.0% of Total Assets at such time;
(30) Liens shown on title reports with respect to properties of the Issuer and the Guarantors existing as of the Issue Date;
(31) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Joint Venture owned by the Company
or any Unrestricted Subsidiary of the Company to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Joint Venture;
(32) Liens securing (a) any defeasance trust; provided that such Liens do not extend to any assets or properties
that are not part of such defeasance trust, or (b) any Indebtedness equally and ratably secured with all Obligations due under the Notes or any Guarantee pursuant to a contractual covenant that limits Liens in a manner substantially similar to
Section 4.12 hereof;
(33) Liens securing any insurance premium financing permitted by
Section 4.09 under customary terms and conditions; provided that no such Lien may extend to or cover any assets or property other than the insurance being acquired with such financing, the proceeds thereof and any
unearned or refunded insurance premiums related thereto;
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(34) Liens in favor of a seller on any segregated cash earnest money
deposits made by the Company or any of its Restricted Subsidiaries in connection with any executed letter of intent or purchase agreement for a purchase assets of the kind used or usable by the Company or its Restricted Subsidiaries in a Permitted
Business not prohibited by this Indenture;
(35) Liens securing industrial development, pollution control or similar bonds;
(36) Liens securing Indebtedness not to exceed the greater of $100.0 million and 2.5% of Total Assets (measured at
the time of incurrence) secured solely by real property and ancillary assets, proceeds and products thereof, of the Company or any of its Restricted Subsidiaries; and
(37) Liens described in clause (a) and (b) of Section 4.12.
If any Liens securing obligations are incurred to refinance Liens securing obligations initially incurred in reliance on a basket measured by
reference to a percentage of Total Assets, and such refinancing would cause the percentage of Total Assets to be exceeded if calculated based on the Total Assets on the date of such refinancing, such percentage of Total Assets will not be deemed to
be exceeded to the extent the principal amount of such obligations secured by such newly incurred Lien does not exceed the principal amount of such obligations secured by such Liens being refinanced, plus any accrued and unpaid interest on the
Indebtedness plus the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such refinanced Indebtedness, and any defeasance costs and any fees and expenses (including
original issue discount, upfront fees or similar fees) incurred in connection with the issuance of such new Indebtedness, or the extension, replacement, refunding, refinancing, renewal or defeasance of such refinanced Indebtedness.
The Company may classify (or later reclassify) any Lien in any one or more of the above categories (including in part in one category and in
part another category).
For purposes of this definition and clauses (a) and (b) of Section 4.12, the term
“Indebtedness” shall be deemed to include interest on such Indebtedness.
“Permitted Renewable Fuel Facility
Dispositions” means (a) any sale, lease, conveyance or other disposition of any properties or assets by the Company or any of its Restricted Subsidiaries, (b) any issuance of Equity Interests in any of the Company’s
Restricted Subsidiaries, (c) any distribution of such properties or assets (i) from the applicable Restricted Subsidiary of the Company to the Company and (ii) from the Company to the direct owner of the Equity Interests in the
Company, and (d) any sale of the Equity Interests in any of its Restricted Subsidiaries, on the one hand, to a Renewable Fuel Facility Affiliate, on the other hand, in any such case, in exchange for cash (with the items described in clauses
2(a) and (b) under Section 4.10 to be cash), Cash Equivalents or Equity Interests in a Renewable Fuel Facility Affiliate, or any combination thereof, provided that, at the time of such disposition, and after
giving effect to such disposition and the receipt of consideration therefore, the Consolidated Total Debt Ratio is less than 2.75 to 1.0.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“PHR
Intermediation Agreement” means that certain Inventory Intermediation Agreement, dated as of May 31, 2024, between Par Hawaii Refining, LLC and the intermediation counterparty party thereto, together with all related terminaling
agreements, transportation agreements, storage agreements, services agreements, trading agreements, marketing and sales agreements, agency agreements, security agreements and other collateral documents, related guarantees, account control
agreements, intercreditor agreements, related Hedge Agreements and other ancillary agreements, in each case, as any of the same may be extended, renewed, amended, supplemented, restated, amended and restated or otherwise modified from time to time,
or refinanced and/or replaced with an Intermediation Agreement from time to time and in whole or in part.
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“Preferred Stock” means any Equity Interest with preferential rights of
payment of dividends or distributions or upon liquidation, dissolution, or winding up.
“Private Placement Legend”
means the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture, except where otherwise permitted by the provisions of this Indenture.
“Pro Forma Cost Savings” means, without duplication, with respect to any period, the reductions in costs and other
operating improvements or synergies that are implemented, committed to be implemented, the commencement of implementation of which has begun or are reasonably expected to be implemented in good faith with respect to a pro forma event within
eighteen months of the date of such pro forma event and that are supportable and quantifiable, as if all such reductions in costs and other operating improvements or synergies had been effected as of the beginning of such period, decreased by
any non-one-time incremental expenses incurred or to be incurred during such four-quarter period in order to achieve such reduction in costs.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Proceeds” means assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar
Business; provided that the fair market value of any such assets or Capital Stock shall be determined by the Issuer in good faith.
“Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the
Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuer which shall be substituted for Moody’s or S&P or both, as the case may be.
“Ratings Decline” means the occurrence of the following on, or within 60 days after, the date of the public notice of the
occurrence of a Change of Control or of the intention by the Company or any third party to effect a Change of Control (which period shall be extended for so long as the rating of the Notes is under publicly announced consideration for possible
downgrade by any of the Ratings Agencies if such period exceeds 60 days): the rating of the Notes by any Ratings Agency decreases by one or more gradations (including gradations within ratings categories as well as between rating categories) below
the rating of the Notes on the Issue Date or is withdrawn.
“Receivables Facility” means any of one or more receivables
financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the Obligations of which are non-recourse (except for customary representations, warranties,
covenants and indemnities made in connection with such facilities) to the Company or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Company or any of its Restricted Subsidiaries sells its accounts
receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn sells its accounts receivable to a Person that is not a Restricted Subsidiary.
“Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any accounts
receivable or participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.
“Receivables Subsidiary” means any Subsidiary formed for the purpose of, and that solely engages only in one or more
Receivables Facilities and other activities reasonably related thereto.
“Record Date” for the interest payable on any
applicable Interest Payment Date means May 15 or November 15 (whether or not a Business Day) next preceding such Interest Payment Date.
“Refinancing Indebtedness” means any Indebtedness, Disqualified Stock or Preferred Stock that is incurred to refund or
refinance, replace, renew, extend or defease any Indebtedness, Disqualified Stock or Preferred Stock including additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums (including reasonable tender premiums), defeasance
costs and fees in connection therewith prior to its respective maturity; provided, however, that such Refinancing Indebtedness:
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(a) has a Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of, the Indebtedness, Disqualified Stock or Preferred Stock being refunded or refinanced, replaced, renewed, extended or defeased,
(b) to the extent such Refinancing Indebtedness refinances (i) Indebtedness subordinated or pari passu to the Notes
or any Guarantee thereof, such Refinancing Indebtedness is subordinated or pari passu to the Notes or the Guarantee at least to the same extent as the Indebtedness being refinanced or refunded or (ii) Disqualified Stock or Preferred
Stock, such Refinancing Indebtedness must be Disqualified Stock or Preferred Stock, respectively, and
(c) shall not
include (i) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Company that is not a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Company or of a Guarantor; and
(ii) Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary;
and provided, further, that subclause (a) will not apply to any refunding or refinancing of any Secured Indebtedness.
“Refinery Related Assets” means any assets which are within, substantially dedicated to or an integral part of any refinery
owned by the Issuer or any of its Subsidiaries.
“Regulated Bank” means an Approved Commercial Bank that is (i) a
U.S. depository institution the deposits of which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of the U.S. Federal Reserve Act of 1913; (iii) a branch, agency or commercial
lending company of a foreign bank operating pursuant to approval by and under the supervision of the Board of Governors under 12 CFR part 211; (iv) a non-U.S. branch of a foreign bank managed and
controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. or non-U.S. depository institution or any branch, agency or similar office thereof supervised by a bank
regulatory authority in any jurisdiction.
“Regulation S” means Regulation S promulgated under
the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as applicable.
“Regulation S Permanent Global Note”
means a permanent Global Note in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee,
issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Restricted Period.
“Regulation S Temporary Global Note” means a temporary Global Note in the form of
Exhibit A hereto bearing the Global Note Legend, the Private Placement Legend and the Regulation S Temporary Global Note Legend and deposited with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903.
“Regulation S Temporary Global Note Legend” means the legend set forth in
Section 2.06(g)(iii) hereof.
“Related Business Assets” means assets (other than cash or Cash
Equivalents) used or useful in a Similar Business, provided that any assets received by the Company or a Restricted Subsidiary in exchange for assets transferred by the Company or a Restricted Subsidiary shall not be deemed to be Related
Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
“Renewable Fuel” means biodiesel, renewable diesel, or other fuel classified as a renewable fuel, including sustainable
aviation fuel and diesel fuel that is produced from non-petroleum renewable resources but is not a mono-alkyl ester and that is registered as a motor vehicle fuel or fuel additive under Title 40, part 79 of
the Code of Federal Regulations, including the renewable portion of a diesel fuel derived from co-processing biomass with a petroleum feedstock.
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“Renewable Fuel Facility” means a facility and all related equipment,
real estate and other assets, in each case whether owned on the Issue Date or developed, constructed or acquired thereafter, the primary purpose of which is the production of Renewable Fuel.
“Renewable Fuel Facility Entity” means a Person that owns a Renewable Fuel Facility.
“Renewable Fuel Facility Affiliate” means an Affiliate of the Company that (i) is a Renewable Fuel Facility Entity and
each Subsidiary of the foregoing or (ii) is the direct or indirect parent of a Renewable Fuel Facility Entity.
“Responsible
Officer” means, when used with respect to the Trustee or an Agent, any officer within the corporate trust department of the Trustee or such Agent, including any vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee or such Agent who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Period” means the 40-day distribution compliance period as defined in
Regulation S.
“Restricted Subsidiary” means, with respect to any Person, at any time, any direct or indirect
Subsidiary of such Person (including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary; provided, however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such
Subsidiary shall be included in the definition of “Restricted Subsidiary.”
“RINs Master Agreement” means
that certain LEAP Master Agreement for Purchasing and Selling Renewable Identification Numbers Version 2.0, effective as of June 27, 2025, between Citigroup Energy Inc. and Hermes Consolidated LLC (d/b/a Wyoming Refining Company, LLC).
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“S&P” means Standard & Poor’s, a division of S&P Global Inc., and any successor to its rating agency
business.
“Sale and Leaseback Transaction” means any arrangement providing for the leasing by the Company or any of
its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by the Company or such Restricted Subsidiary to a third Person in contemplation of such leasing.
“Screened Affiliate” means any Affiliate of a Holder (i) that makes investment decisions independently from such
Holder and any other Affiliate of such Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any other Affiliate of such Holder that is not a Screened Affiliate and such
screens prohibit the sharing of information with respect to the Issuer or its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in
connection with its investment in the Notes and (iv) whose investment decisions are not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holders in connection with
its investment in the Notes.
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“SEC” means the U.S. Securities and Exchange Commission.
“Secured Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries secured by a Lien.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated
thereunder.
“Senior Credit Facilities” means the Credit Facility under the Amended and Restated Asset-Based Revolving
Credit Agreement, dated as of May 14, 2026, by and among Holdings, the Issuer as a borrower, certain Subsidiaries of the Issuer, as borrowers, the lenders and other issuing banks party thereto from time to time, and Wells Fargo Bank, National
Association, as agent for such lenders and banks, including any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements,
refundings or refinancings thereof and any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that replace, refund or refinance any part of the loans, notes, other credit facilities
or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted
under Section 4.09 hereof).
“Senior Indebtedness” means:
(1) all Indebtedness of the Issuer or any Guarantor outstanding under the Senior Credit Facilities and related Guarantees
(including interest accruing on or after the filing of any petition in bankruptcy or similar proceeding or for reorganization of the Issuer or any Guarantor (at the rate provided for in the documentation with respect thereto, regardless of whether
or not a claim for post-filing interest is allowed in such proceedings)), and any and all other fees, expense reimbursement obligations, indemnification amounts, penalties, and other amounts (whether existing on the Issue Date or thereafter created
or incurred) and all obligations of the Issuer or any Guarantor to reimburse any bank or other Person in respect of amounts paid under letters of credit, acceptances or other similar instruments;
(2) all Hedging Obligations (and guarantees thereof) owing to a Lender (as defined in the Senior Credit Facilities) or any
Affiliate of such Lender (or any Person that was a Lender or an Affiliate of such Lender at the time the applicable agreement giving rise to such Hedging Obligation was entered into); provided, that such Hedging Obligations are permitted to
be incurred under the terms of this Indenture;
(3) any other Indebtedness of the Issuer or any Guarantor permitted to be
incurred under the terms of this Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or any related Guarantee; and
(4) all Obligations with respect to the items listed in the preceding clauses (1), (2) and (3);
provided, however, that Senior Indebtedness shall not include:
(a) any obligation of such Person to the Issuer or any of their Subsidiaries;
(b) any liability for federal, state, local or other taxes owed or owing by such Person;
(c) any accounts payable or other liability to trade creditors arising in the ordinary course of business;
(d) any Indebtedness or other Obligation of such Person which is subordinate or junior in any respect to any other Indebtedness
or other Obligation of such Person; or
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(e) that portion of any Indebtedness which at the time of incurrence is
incurred in violation of this Indenture.
“Short Derivative Instrument” means a Derivative Instrument (i) the
value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases, and/or the payment or
delivery obligations under which generally decrease, with negative changes to the Performance References.
“Significant
Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date.
“Similar Business” means any business conducted or proposed to be conducted by the Company and its Restricted Subsidiaries
on the Issue Date or any business that is similar, reasonably related, incidental, supplemental, complementary or ancillary thereto.
“Specified Assets” means the Par West refinery and all assets used or located at the Par West refinery.
“Specified Inventory” means crude oil, natural gas, casinghead gas, drip gasoline, natural gasoline, condensate,
distillate, liquid hydrocarbons, gaseous hydrocarbons, biofuels, biodiesel, ethanol, hydrocarbon intermediate products, feedstocks, blendstocks, soybean oil, canola oil, tallow, grease, fats and oils and other renewable feedstocks, and renewable
naphtha, sustainable aviation fuel, renewable diesel and other renewable products and all constituents, elements or compounds thereof and products refined or processed therefrom.
“Subordinated Indebtedness” means, with respect to the Notes,
(1) any Indebtedness of the Issuer which is by its express written terms subordinated in right of payment to the Notes, and
(2) any Indebtedness of any Guarantor which is by its express written terms subordinated in right of payment to the
Guarantee by such entity of the Notes.
“Subsidiary” means, with respect to any Person:
(1) any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company
or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of
determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; and
(2) any partnership, joint venture, limited liability company or similar entity of which
(x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited
partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited
partnership or otherwise, and
(y) such Person or any Restricted Subsidiary of such Person is a controlling general partner
or otherwise controls such entity.
“Total Assets” means the total assets of the Company and its Restricted
Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Company or such other Person as may be expressly stated for which internal financial statements are available.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the
following two paragraphs.
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The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or
after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that
appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or
publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the
Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no
such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant
maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places;
or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the
applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate
based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day pre-ceding such redemption date of the United States Treasury
security maturing on, or with a maturity that is closest to, the applicable Par Call Date, as applicable. If there is no United States Treasury security maturing on the applicable Par Call Date but there are two or more United States Treasury
securities with a maturity date equally distant from the applicable Par Call Date, one with a maturity date preceding the applicable Par Call Date and one with a maturity date following the applicable Par Call Date, the Company shall select the
United States Treasury security with a maturity date preceding the applicable Par Call Date. If there are two or more United States Treasury securities maturing on the applicable Par Call Date or two or more United States Treasury securities meeting
the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for
such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be
based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
(a) The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes,
absent manifest error. The Trustee shall have no responsibility to calculate or determine the redemption price of the Treasury Rate.
(b)
The Company may at any time, and from time to time, purchase the Notes at any price in the open market, through negotiated transactions, by tender offer or otherwise.
(c) The Company shall have no obligation to redeem, purchase or repay Notes pursuant to any sinking fund or analogous provision or, except as
provided in the Indenture, at the option of a Holder thereof.
(d) With respect to any redemption occurring prior to the applicable Par
Call Date, the Company shall deliver notice to the Trustee of the related redemption price promptly after the calculation thereof and the Trustee shall not have any responsibility for such calculation.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
“Trustee” means U.S. Bank Trust Company, National Association, as trustee, until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Unrestricted Definitive
Note” means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend.
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“Unrestricted Global Note” means a permanent Global Note, substantially
in the form of Exhibit A attached hereto that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of
and registered in the name of the Depositary, representing Notes that do not bear the Private Placement Legend.
“Unrestricted
Subsidiary” means:
(1)
each Subsidiary of the Company that is a Renewable Fuel Facility Affiliate (and any Subsidiary of the
foregoing);
(2) each Captive Insurance Subsidiary;
(3) any Subsidiary of the Company which at the time of determination is an Unrestricted Subsidiary (as designated by the
Company, as provided below); and
(4) any Subsidiary of an Unrestricted Subsidiary.
The Company may designate any Subsidiary of the Company (including any existing Subsidiary and any newly acquired or newly formed Subsidiary)
to be an Unrestricted Subsidiary but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Issuer or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or understanding would be permitted under Section 4.11 hereof after giving effect to the exceptions
thereto;
(3) is a Person with respect to which neither the Issuer nor any of its Restricted Subsidiaries has any direct or
indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results except to the extent
permitted under Sections 4.07 and 4.09 hereof; and
(4) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Issuer or any of its Restricted Subsidiaries, except to the extent such guarantee or credit support would be released upon such designation or would be permitted under
Section 4.07 hereof. any Unrestricted Subsidiary must be an entity of which the Equity Interests entitled to cast at least a majority of the votes that may be cast by all Equity Interests having ordinary voting power for
the election of directors or Persons performing a similar function are owned, directly or indirectly, by the Company;
(5)
such designation complies with Section 4.07 hereof; and
(6) each of:
(a) the Subsidiary to be so designated; and
(b) its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Company or any Restricted Subsidiary.
The Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to
such designation, no Default shall have occurred and be continuing and either:
(1) the Company could incur at least $1.00
of additional Indebtedness under Section 4.09(a) hereof; or
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(2) the Fixed Charge Coverage Ratio for the Company and its Restricted
Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such designation,
in each case on a pro forma basis taking into account such designation.
Any such designation by the Company shall be notified by the Issuer to the Trustee by promptly filing with the Trustee an Officer’s
Certificate certifying that such designation complied with the foregoing provisions.
“U.S. Person”
means a U.S. person as defined in Rule 902(k) under the Securities Act.
“Voting Stock” of any Person as of
any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the board of directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the
case may be, at any date, the quotient obtained by dividing:
(1) the sum of the products of the number of years from the
date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment; by
(2) the sum of all such payments.
“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Equity Interests of
which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
Section 1.02 Other Definitions.
Term
Defined in
Section
“Acceptable Commitment”
4.10
“Affiliate Transaction”
4.11
“Alternate Offer”
4.14
“Applicable Law”
7.14
“Authentication Order”
2.02
“Change of Control Offer”
4.14
“Change of Control Payment”
4.14
“Change of Control Payment Date”
4.14
“Covenant Defeasance”
8.03
“Covenant Termination Event”
4.16
“DTC”
2.03
“Event of Default”
6.01
“Excess Proceeds”
4.10
“incur”
4.09
“Legal Defeasance”
8.02
“New Guarantor”
4.19
“Note Register”
2.03
“Offer Amount”
3.10
“Offer Period”
3.10
“Pari Passu Indebtedness”
4.10
“Paying Agent”
2.03
“Purchase Date”
3.10
“Redemption Date”
3.07
“Refunding Capital Stock”
4.07
“Registrar”
2.03
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“Restricted Payments”
4.07
“Successor Company”
5.01
“Successor Person”
5.01
“Terminated Covenants”
4.16
“Treasury Capital Stock”
4.07
Section 1.03 [Reserved].
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) “will” shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or successor sections or
rules adopted by the SEC from time to time;
(h) unless the context otherwise requires, any reference to an “Article,”
“Section” or “clause” refers to an Article, Section or clause, as the case may be, of this Indenture;
(i) the
words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause or other subdivision;
(j) the words “including,” “includes” and “include” shall be deemed to be followed by the words
“without limitation”; and
(k) the words “asset” and “property” shall be construed as having the same
meaning and effect.
Section 1.05 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to the Trustee and to the Registrar and, where it is hereby expressly required, to the Issuer. Proof of execution of any such instrument or of a writing appointing any
such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee, the Agents and the Issuer, if made in the manner provided in this
Section 1.05.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that either the Trustee or the Registrar deems sufficient.
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(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee, an Agent or the Issuer in reliance
thereon, whether or not notation of such action is made upon such Note.
(e) [Reserved].
(f) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to
all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or action taken by a Holder
or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, a Holder, including DTC that is the Holder of a Global Note, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and DTC that is the Holder of a Global Note may
provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such depositary’s standing instructions and customary practices.
(h) The Issuer may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held
by DTC entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be
made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or
taken more than 90 days after such record date.
Section 1.06 Limited Condition Transactions; Measuring Compliance.
With respect to any (x) Investment or acquisition, in each case, the consummation by the Company or any Subsidiary of which is not
conditioned on the availability of, or on obtaining, third-party financing for such Investment or acquisition (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock or otherwise) as
applicable and (y) Restricted Payment, redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice in advance of such redemption, repurchase,
defeasance, satisfaction and discharge or repayment (any transaction described in clauses (x) or (y), a “Limited Condition Transaction”), in each case for purposes of determining:
(a) whether any Indebtedness (including Acquired Indebtedness), Disqualified Stock or Preferred Stock that is being incurred or issued in
connection with such Limited Condition Transaction is permitted to be incurred in compliance with Section 4.09;
(b) whether
any Lien being incurred in connection with such Limited Condition Transaction or to secure any such Indebtedness, Disqualified Stock or Preferred Stock is permitted to be incurred in accordance with Section 4.12;
(c) whether any other transaction (including any Investment or Restricted Payment) undertaken or proposed to be undertaken in connection with
such Limited Condition Transaction complies with the covenants or agreements contained in this Indenture or the Notes; and
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(d) any calculation of the availability under any basket or ratio (including the
Consolidated Total Debt Ratio, Consolidated Secured Debt Ratio and Fixed Charge Coverage Ratio) and/or Consolidated Net Income and/or Consolidated Total Indebtedness under this Indenture, and whether a Default or Event of Default exists, in each
case in connection with a Limited Condition Transaction, at the option of the Company, the date that the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction is entered into (the
“Transaction Agreement Date”) may be used as the applicable date of determination of such basket or ratio and of any Default or Event of Default, as the case may be, in each case with such pro forma adjustments as are appropriate
and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio” and if the Company or the Restricted Subsidiaries could have taken such action on the relevant Transaction Agreement
Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with. For the avoidance of doubt, if the Company elects to use the Transaction Agreement Date as the applicable date of
determination in accordance with the foregoing, (a) such election may not be revoked, (b) any fluctuation or change in the Consolidated Total Debt Ratio, Consolidated Secured Debt Ratio and Fixed Charge Coverage Ratio, Consolidated Net
Income, or Consolidated Total Indebtedness of the Company, the target business, or assets to be acquired subsequent to the Transaction Agreement Date and prior to the consummation of such Limited Condition Transaction, will not be taken into account
for purposes of determining whether any Investment, Restricted Payment, Indebtedness, Disqualified Stock, Preferred Stock or Lien that is being made, incurred or issued in connection with such Limited Condition Transaction is permitted to be made,
incurred or issued or in connection with compliance by the Company or any of the Restricted Subsidiaries with any other provision of this Indenture or the Notes of any series or any other action or transaction undertaken in connection with such
Limited Condition Transaction and (c) until such Limited Condition Transaction is consummated or the definitive agreements related thereto are terminated, such Limited Condition Transaction and all transactions proposed to be undertaken in
connection therewith (including the making of any Restricted Payment, or Investments, or the incurrence of Indebtedness and Liens) will be given pro forma effect when determining compliance of other transactions (including the making of any
Restricted Payment, or Investments, or the incurrence or issuance of Indebtedness, Disqualified Stock, Preferred Stock and Liens unrelated to such Investment, acquisition or repayment, repurchase or refinancing of Indebtedness) that are consummated
after the Transaction Agreement Date and on or prior to the consummation of such Limited Condition Transaction and any such transactions (including any incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock and the use of
proceeds thereof) will be deemed to have occurred on the Transaction Agreement Date and outstanding thereafter for purposes of calculating any baskets or ratios under this Indenture after the date of such agreement and before the consummation of
such Limited Condition Transaction; provided that for purposes of any such calculation of the Fixed Charge Coverage Ratio, Fixed Charges will be calculated using an assumed interest rate for the Indebtedness to be incurred in connection with
such Limited Condition Transaction based on the indicative interest margin contained in any financing commitment documentation with respect to such Indebtedness or, if no such indicative interest margin exists, as reasonably determined by the
Company in good faith. Each item of Indebtedness, Disqualified Stock or Preferred Stock that is incurred or issued, each Lien incurred and each other transaction undertaken will be deemed to have been incurred, issued or taken first, to the extent
available, pursuant to the relevant Consolidated Total Debt Ratio, Consolidated Secured Debt Ratio and Fixed Charge Coverage Ratio test.
Notwithstanding anything herein to the contrary, if the Company or any of its Restricted Subsidiaries substantially simultaneously
(x) incurs Indebtedness, issues Disqualified Stock or Preferred Stock, creates Liens, makes Asset Sales, makes Investments, makes Restricted Payments, designates any Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or repays
any Indebtedness, Disqualified Stock or Preferred Stock in connection with any Limited Condition Transaction under a ratio-based basket and (y) incurs Indebtedness, issues Disqualified Stock or Preferred Stock, creates Liens, makes Asset Sales,
Investments or Restricted Payments, designates any as a Restricted Subsidiary or an Unrestricted Subsidiary or repays any Indebtedness, Disqualified Stock or Preferred Stock in connection with any Limited Condition Transaction under a non-ratio-based basket, then the applicable ratio will be calculated with respect to any such action under the applicable ratio-based basket without regard to any such action under such non-ratio-based basket made in connection with such Limited Condition Transaction.
Compliance with any
requirement relating to absence of a Default or Event of Default may be determined as of the Transaction Agreement Date and not as of any later date as would otherwise be required under this Indenture.
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ARTICLE 2
THE NOTES
Section 2.01 Form and Dating;
Terms.
(a) General. The Notes and the Authenticating Agent’s certificate of authentication shall be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $2,000
and integral multiples of $1,000 in excess thereof.
(b) Global Notes. Notes issued in global form shall be substantially in the
form of Exhibit A attached hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be substantially in the form
of Exhibit A attached hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). The Global Note shall represent such of the outstanding Notes
as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and shall provide that it shall represent up to the aggregate principal amount of Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Registrar or the Custodian, at the direction of the Registrar, in accordance with instructions given by the Holder thereof as required by
Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Custodian, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Issuer and authenticated by the Authenticating Agent as hereinafter provided. The Restricted Period
shall be terminated upon the receipt by the Registrar of:
(1) a written certificate from the Depositary, together with
copies of certificates from Euroclear and Clearstream (if available) certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who shall take
delivery of a beneficial ownership interest in a 144A Global Note bearing a Private Placement Legend, all as contemplated by Section 2.06(b) hereof); and
(2) an Officer’s Certificate from the Issuer.
Following the termination of the Restricted Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Registrar shall cancel the Regulation S
Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Registrar
and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.
(d) Terms.
The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited.
The terms and
provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuer, the Guarantors, the Agents and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
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The Notes shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer as
provided in Section 4.10 hereof or a Change of Control Offer as provided in Section 4.14 hereof. The Notes shall not be redeemable, other than as provided in Article 3.
Additional Notes ranking pari passu with the Initial Notes may be created and issued from time to time by the Issuer without notice to
or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and shall have the same terms as to status, redemption or otherwise as the Initial Notes; provided that the Issuer’s ability to
issue Additional Notes shall be subject to the Issuer’s compliance with Section 4.09 hereof. Any Additional Notes may be issued with the benefit of an indenture supplemental to this Indenture.
(e) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System”
and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable to transfers of beneficial interests
in the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes that are held by Participants through Euroclear or Clearstream.
(f) None of the Trustee or Agents shall have any responsibility or obligation to any beneficial owner of an interest in a Global Note, any
agent member or other member of, or a participant in, DTC or other person with respect to the accuracy of the records of DTC or any nominee or participant or member thereof, with respect to any ownership interest in the Notes or with respect to the
delivery to any agent member or other participant, member, beneficial owner or other person (other than DTC) of any notice or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All
notices and communications to be given to the holders and all payments to be made to holders in respect of the Notes shall be given or made only to or upon the order of the registered holders (which shall be DTC or its nominee in the case of a
Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC, subject to its applicable rules and procedures. The Trustee and Agents may rely and shall be fully protected in relying upon information furnished
by DTC with respect to its agent members and other members, participants and any beneficial owners.
Section 2.02 Execution and
Authentication.
At least one Officer shall execute the Notes on behalf of the Issuer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated
substantially in the form of Exhibit A attached hereto, as the case may be, by the manual signature of the Authenticating Agent. The signature shall be conclusive evidence that the Note has been duly authenticated and
delivered under this Indenture.
On the Issue Date, the Authenticating Agent shall, upon receipt of an Issuer’s Order (an
“Authentication Order”), authenticate and deliver the Initial Notes. In addition, at any time, from time to time, the Authenticating Agent shall upon its receipt of an Authentication Order authenticate and deliver any Additional
Notes for an aggregate principal amount specified in such Authentication Order for such Additional Notes issued hereunder.
The Registrar
or Authenticating Agent may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Authenticating Agent may do so. Each reference in this Indenture to
authentication by the Authenticating Agent includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.
Section 2.03 Registrar and Paying Agent.
The Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange
(“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes (“Note Register”) and of their transfer and
exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the
term “Paying Agent” includes any additional paying agent. The Issuer may change any Paying Agent
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or Registrar without prior notice to any Holder. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint
or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent, Transfer Agent or Registrar.
The Issuer initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.
The Issuer initially appoints U.S. Bank Trust Company, National Association, to act as the Paying Agent, Transfer Agent and Registrar for
the Notes and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent not party hereto to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues,
the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Issuer or a Subsidiary) shall have no further liability for the money. If an Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Issuer, the Paying Agent shall continue to serve as the Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses
of all Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at such times as the Trustee may reasonably request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names
and addresses of the Holders of Notes.
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. Except as otherwise set forth in this Section 2.06, a Global Note may be
transferred, in whole and not in part, only to another nominee of the Depositary or to a successor Depositary or a nominee of such successor Depositary. A beneficial interest in a Global Note may not be exchanged for a Definitive Note unless
(i) the Depositary (x) notifies the Issuer that it is unwilling or unable to continue as Depositary for such Global Note or (y) has ceased to be a clearing agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Issuer within 120 days or (ii) there shall have occurred and be continuing a Default or an Event of Default with respect to the Notes. Upon the occurrence of any of the preceding events in (i) or (ii)
above, Definitive Notes delivered in exchange for any Global Note or beneficial interests therein will be registered in the names, and issued in any approved denominations, requested by or on behalf of the Depositary (in accordance with its
customary procedures). Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the
preceding events in (i) or (ii) above and pursuant to Section 2.06(c) hereof. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); provided, however,
beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either clause (i) or (ii) below, as applicable, as well as one or more of the other
following clauses, as applicable:
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(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private
Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit
of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written
orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.06(b)(i) hereof, the transferor of such beneficial interest must deliver to the Registrar either (a) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (b) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above; provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global Note prior to the expiration of the Restricted Period. Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Registrar shall adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted Global Note. A
beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of
Section 2.06(b)(ii) hereof and the Registrar receives the following:
(i) if the transferee will take delivery
in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; or
(ii) if the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) hereof and the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
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(ii) if the holder of such beneficial interest in a Restricted Global Note
proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case, if the Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to clause (A) above at a time when an Unrestricted
Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Authenticating Agent shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to clause (A) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial
interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon the occurrence of any of the events in clauses (i) or (ii) of Section 2.06(a) hereof and receipt by the Registrar of the following documentation:
(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(ii) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate substantially
in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(iii) if such
beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (2) thereof;
(iv) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(a) thereof;
(v) if such beneficial interest is being transferred to the Issuer or any of their Restricted Subsidiaries, a certificate
substantially in the form of Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(vi)
if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Registrar shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Issuer shall execute and the Authenticating Agent shall authenticate and mail to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names
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and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Registrar shall mail such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes. Notwithstanding
Sections 2.06(c)(i)(B) and (C) hereof, a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a
Definitive Note prior to the expiration of the Restricted Period, except in the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(3) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest
in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only upon the
occurrence of any of the events in clauses (i) or (ii) of Section 2.06(a) hereof and if the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(4) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon the occurrence of
any of the events in clauses (i) or (ii) of Section 2.06(a) hereof and satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Registrar shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Authenticating Agent shall authenticate and mail to the Person designated in the instructions a Definitive Note in the
applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be registered in such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through instructions from or through the Depositary and the Participant or Indirect Participant. The Registrar shall mail such Definitive Notes to the Persons in whose names such Notes
are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted
Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following documentation:
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(i) if the Holder of such Restricted Definitive Note proposes to exchange
such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(ii) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate
substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(iii)
if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
(iv) if such Restricted Definitive
Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(v) if such Restricted Definitive Note is being transferred to the Issuer or any of its Restricted
Subsidiaries, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(vi) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the
Securities Act, a certificate substantially in the form of Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Registrar shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the applicable Restricted Global Note, in the case of clause (B) above, the applicable 144A Global Note, and in the case of clause (C) above, the applicable Regulation S Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted
Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if the Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to exchange such Notes
for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the
form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
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Upon satisfaction of the conditions of any of the clauses in this
Section 2.06(d)(ii), the Registrar shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time.
Upon receipt of a request for such an exchange or transfer, the Registrar shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to clause (ii)(A) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Authenticating Agent shall
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s
compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to
the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting
Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e):
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(i) if the transfer will be made pursuant to a QIB in accordance with Rule 144A, then the transferor must deliver a
certificate substantially in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(ii) if the transfer will be made pursuant to Rule 903 or Rule 904 then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (2) thereof; or
(iii) if the transfer
will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications required by item
(3) thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a
certificate from such Holder substantially in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit B hereto, including the certifications in item (4) thereof;
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and, in each such case, if the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes.
A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Legends. The following legends shall appear
on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture:
(1)
Private Placement Legend.
(i) Except as permitted by clause (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in substantially the following form:
“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED NOTES, TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATEST OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE
ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE)] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATEST OF THE ORIGINAL
ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN
RELIANCE ON REGULATION S], ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT THAT IS NOT A
QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM $250,000 PRINCIPAL AMOUNT OF NOTES OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C), (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION, AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.”
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In the case of any Global Note or Definitive Note sold pursuant to Regulation S, the Global
Note or Definitive Note will bear an additional legend substantially to the following effect unless otherwise agreed by us and the holder thereof:
“ BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON,
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.”
(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to clause (b)(iv), (c)(iii), (c)(iv),
(d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note shall bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE REGISTRAR MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE REGISTRAR FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
(3) Regulation S Temporary Global Note Legend. The Regulation S Temporary Global Note shall bear
a legend in substantially the following form:
“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”
(g)
Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and
not in part, each such Global Note shall be returned to or retained and canceled by the Registrar in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged
for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Registrar or by the Depositary at the direction of the Registrar to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Registrar or by the Depositary at the direction of the Registrar
to reflect such increase.
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(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Issuer shall execute and the Authenticating Agent shall authenticate Global Notes
and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.
(1) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 4.10, 4.14 and 9.05 hereof).
(2) Neither the Registrar nor the Issuer shall be required to register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(3) All Global Notes and
Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(4) The Issuer shall not be required
(a) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection, (b) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (c) to register the
transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date.
(5) Prior to due
presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal
of (and premium, if any) and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(6) Upon surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to
Section 4.02 hereof, the Issuer shall execute, and the Authenticating Agent shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or
denominations of a like aggregate principal amount.
(7) At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the
Issuer shall execute, and the Authenticating Agent shall authenticate and mail, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Section 2.02
hereof.
(8) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to
this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
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(9) Neither the Trustee nor the Agents shall have any obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among participants or
indirect participants in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee, the Registrar or the Issuer and the Registrar receives evidence to its satisfaction
of the ownership and destruction, loss or theft of any Note, the Issuer shall issue and the Authenticating Agent, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Authenticating Agent’s requirements are
met. If required by the Authenticating Agent or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Authenticating Agent and the Issuer to protect the Issuer, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer and the Authenticating Agent may charge for their expenses in replacing a Note.
Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Authenticating Agent except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note effected by the Registrar in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth
in Section 2.09 hereof, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Registrar receives
proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent
(other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding
and shall cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Issuer, or by any Affiliate of the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee and each Agent shall be protected in relying on any such direction, waiver or consent,
only Notes that a Responsible Officer of the Registrar and the Trustee actually knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction
of the Registrar and the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or any Affiliate of an Issuer or of such other
obligor.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Authenticating Agent, upon receipt of an
Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuer consider appropriate for temporary Notes and as shall be reasonably acceptable
to the Registrar. Without unreasonable delay, the Issuer shall prepare and the Authenticating Agent shall authenticate definitive Notes in exchange for temporary Notes.
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Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to
all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.
Section 2.11
Cancellation.
The Issuer at any time may deliver Notes to the Registrar for cancellation. The Trustee shall forward to the
Registrar any Notes surrendered to it for registration of transfer, exchange or payment. The Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall destroy cancelled Notes (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all cancelled Notes shall be delivered to the Issuer. The Issuer may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Registrar for cancellation.
Section 2.12 Defaulted Interest.
If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuer shall notify the
Paying Agent in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer shall deposit with the Paying Agent an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make arrangements satisfactory to the Paying Agent for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such defaulted interest as provided in this Section 2.12. The Paying Agent shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted interest. The Paying Agent shall promptly notify the Issuer of such special record date. At least 15 days before the special record date, the Issuer (or, upon the
written request of the Issuer, the Paying Agent or Registrar in the name and at the expense of the Issuer) shall mail or cause to be mailed, first-class postage prepaid, or otherwise delivered, to each Holder a notice at his, her or their address as
it appears in the Note Register that states the special record date, the related payment date and the amount of such interest to be paid.
Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 2.13 CUSIP and ISIN Numbers.
The Issuer in issuing the Notes may use CUSIP and ISIN numbers (if then generally in use) and, if so, the Registrar shall use CUSIP and ISIN
numbers in notices of redemption as a convenience to Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of
redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will as promptly as practicable notify
the Registrar of any change in the CUSIP and ISIN numbers.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to
Trustee and Registrar.
If the Issuer elects to redeem Notes pursuant to Section 3.07 hereof, it shall
furnish written notice to the Trustee and the Registrar, at least 5 Business Days (unless a shorter notice shall be agreed to by the Registrar) before notice of redemption is required to be mailed or otherwise delivered or caused to be mailed or
delivered to Holders pursuant to Section 3.03 hereof but not more than 60 days before a redemption date (except that such notice may be given more than 60 days prior to a redemption date if the notice is issued in
connection with Article VIII or Article XI hereof), an Officer’s Certificate setting forth (i) the paragraph or subparagraph of such Note and/or Section of this Indenture pursuant to which the redemption shall occur,
(ii) the redemption date, (iii) the principal amount and CUSIP and ISIN numbers, if any, of the Notes to be redeemed and (iv) the redemption price.
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Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Registrar shall select the Notes to be
redeemed or purchased on a pro rata basis to the extent practicable or, if a pro rata basis is not practicable for any reason by lot or by such other similar method in accordance with the procedures of DTC. In the event of partial
redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 10 days nor more than 60 days prior to the redemption date by the Registrar from the outstanding Notes
not previously called for redemption or purchase.
The Registrar shall promptly notify the Issuer in writing of the Notes selected for
redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of
$1,000 in excess thereof; no Notes of $2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not $2,000 or a multiple
of $1,000 in excess thereof, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or
purchase.
If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such
Notes in connection with an Asset Sale Offer and the Issuer purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer will have the right, upon not less than 10 days’ nor more than 60 days prior notice, given
not more than 30 days following such purchase pursuant to the Asset Sale Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to 100% of the aggregate principal amount of the
Notes redeemed plus accrued and unpaid interest, if any, thereon on the date of redemption, subject to the right of holders of record on relevant record dates to receive interest due on an interest payment date.
Section 3.03 Notice of Redemption.
The Issuer shall mail or cause to be mailed by first-class mail or otherwise delivered notices of redemption at least 10 days but not more than
60 days before the redemption date to each Holder of Notes to be redeemed at such Holder’s registered address or otherwise in accordance with the procedures of DTC, except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with Article VIII or Article XI hereof. Any notice of redemption may, at the Issuer’s discretion, be subject to one or more conditions precedent.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the
redemption price;
(c) if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed
and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion of the original Note representing the same indebtedness to the extent not redeemed will be issued in the name of
the Holder of the Notes upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
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(f) that, unless the Issuer defaults in making such redemption payment, interest on Notes
called for redemption ceases to accrue on and after the redemption date;
(g) the paragraph or subparagraph of the Notes and/or Section of
this Indenture pursuant to which the Notes called for redemption are being redeemed;
(h) the CUSIP and ISIN numbers, provided that
no representation is made as to the correctness or accuracy of the CUSIP number or ISIN number, if any, listed in such notice or printed on the Notes; and
(i) if in connection with any conditional redemption, any condition to such redemption.
At the Issuer’s request, the Registrar shall give the notice of redemption in the Issuer’s name and at its expense;
provided that the Issuer shall have delivered to the Registrar, at least 5 Business Days before notice of redemption is required to be mailed or caused to be mailed or otherwise delivered to Holders pursuant to this
Section 3.03 (unless a shorter notice shall be agreed to by the Registrar), an Officer’s Certificate requesting that the Registrar give such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed or otherwise delivered in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price (except as provided for in Section 3.03). The notice, if given in a manner herein provided, shall be conclusively presumed to have
been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note. Subject to Section 3.05 hereof, on and after the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption.
Section 3.05 Deposit of Redemption or Purchase Price.
Prior to 10:00 a.m. (New York City time) on the redemption or purchase date, the Issuer shall deposit with the Paying Agent money sufficient to
pay the redemption or purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that date. The Paying Agent shall promptly return to the Issuer any money deposited with the Paying Agent by the Issuer in excess of
the amounts necessary to pay the redemption price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
If the
Issuer complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased
on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the redemption or purchase date shall be paid to the Person in whose name such Note was registered at the close of business on
such Record Date. If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and
in Section 4.01 hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and the Authenticating Agent shall authenticate for the
Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same indebtedness to the extent not redeemed or purchased; provided that each new Note
will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. It is understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or
Officer’s Certificate is required for the Authenticating Agent to authenticate such new Note.
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Section 3.07 Optional Redemption.
(a) At any time prior to June 1, 2029, the Issuer may redeem all or a part of the Notes, upon not less than 10 nor more than 60
days’ prior notice (except that such notice may be given more than 60 days prior to a redemption date if the notice is issued in connection with Article VIII or Article XI hereof) mailed by first-class mail or otherwise delivered to the
registered address of each Holder of Notes or otherwise delivered in accordance with the procedures of DTC, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest, if any, to, but not including, the date of redemption (the “Redemption Date”), subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
(b) Until June 1, 2029, the Issuer may, at its option, on one or more occasions redeem up to 40% of the aggregate principal amount of
Notes at a redemption price equal to 107.375% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon, if any, to the applicable Redemption Date, subject to the right of Holders of Notes of record on the relevant Record
Date to receive interest due on the relevant Interest Payment Date, with an amount equal to the net cash proceeds of one or more Equity Offerings; provided that at least 60% of the aggregate principal amount of Notes originally issued under
this Indenture remains outstanding immediately after the occurrence of each such redemption. Any such redemption will be required to occur on or prior to 180 days after the Issuer’s receipt of the net cash proceeds of such Equity Offering and
upon not less than 10 nor more than 60 days’ notice (except that such notice may be given more than 60 days prior to a redemption date if the notice is issued in connection with Article VIII or Article XI hereof) mailed to each Holder of Notes
to be redeemed at such Holder’s address appearing in the Note Register, in principal amounts of $2,000 or an integral multiple of $1,000.
(c) Except pursuant to clause (a) or (b) of this Section 3.07, the Notes will not be redeemable at the Issuer’s option
prior to June 1, 2029.
(d) On and after June 1, 2029, the Issuer may redeem the Notes, in whole or in part, upon not less than
10 days prior written notice to the Registrar (unless a shorter notice shall be agreed to by the Registrar) and not less than 10 nor more than 60 days’ prior notice (except that such notice may be given more than 60 days prior to a redemption
date if the notice is issued in connection with Article VIII or Article XI hereof) by first-class mail, postage prepaid, or other delivery (with a copy to the Trustee, the Registrar and the Paying Agent), to each Holder of Notes at the address of
such Holder appearing in the security register, at the redemption prices (expressed as percentages of principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest thereon, if any, to the applicable Redemption Date,
subject to the right of Holders of Notes of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date, if redeemed during the 12-month period beginning on June 1 in
the years indicated below:
Year
Percentage
2029
103.688
%
2030
101.844
%
2031 and thereafter
100.000
%
(e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
The Notes shall not be subject to mandatory redemption or sinking fund payments.
Section 3.09 [Reserved].
Section 3.10
Offers to Repurchase by Application of Excess Proceeds.
(a) In the event that, pursuant to Section 4.10 hereof,
the Issuer shall be required to commence an Asset Sale Offer, they shall follow the procedures specified below.
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(b) The Asset Sale Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the termination of the Offer Period (the “Purchase
Date”), the Issuer shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and, if required, Senior Indebtedness (on a pro rata basis, if applicable), or, if less than the Offer Amount has
been tendered, all Notes and Senior Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
(c) If the Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest up to
but excluding the Purchase Date shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(d) Upon the commencement of an Asset Sale Offer, the Issuer shall send by first-class mail or deliver by electronic transmission, a
notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders
and holders of such Senior Indebtedness. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section 3.10 and Section 4.10 hereof and
the length of time the Asset Sale Offer shall remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment shall continue to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer
shall cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 (but in a minimum amount of $2,000) only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note,
with the form entitled “Option of Holder to Elect Purchase” attached to the Note completed, or transfer by book-entry transfer, to the Issuer, the Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the
Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, an e-mail, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and Senior Indebtedness surrendered by the holders thereof exceeds the
Offer Amount, (i) the Registrar shall select the Notes to be purchased by lot or such other method in accordance with the procedures of DTC and (ii) the representatives for the holders of such other Senior Indebtedness shall select such
other Senior Indebtedness, with such selected Notes and Senior Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes and such Senior Indebtedness tendered (with such adjustments as may
be deemed appropriate by the Registrar so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased); and
(9) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry transfer) representing the same indebtedness to the extent not repurchased.
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(e) On or before the Purchase Date, the Issuer shall, to the extent lawful, (1) accept
for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof validly tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered and
(2) deliver or cause to be delivered to the Registrar the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof so tendered.
(f) The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly mail or deliver to each tendering Holder an amount equal
to the purchase price of the Notes properly tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Authenticating Agent, upon receipt of an Authentication Order, shall authenticate
and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate is required for
the Authenticating Agent to authenticate and mail or deliver such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing the same indebtedness to the extent not repurchased; provided, that each
such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the
results of the Asset Sale Offer on or as soon as practicable after the Purchase Date.
Other than as specifically provided in this
Section 3.10 or Section 4.10 hereof, any purchase pursuant to this Section 3.10 shall be made pursuant to the applicable provisions of Sections 3.01 through
3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01 Payment of
Notes.
The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and
in the manner provided in the Notes and this Indenture. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Issuer or a Subsidiary, holds as of 10:00 a.m. (New York City time) on
the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate
equal to the then applicable interest rate on the Notes to the extent lawful; they shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable
grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Issuer shall maintain in the United States of America an office or agency (which may be an office of the Trustee or an affiliate of the
Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture
may be served. The Issuer shall give prompt written notice to the Trustee and the Registrar of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee and the Registrar with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Registrar.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in the United States of America
for such purposes. The Issuer shall give prompt written notice to the Trustee and the Registrar of any such designation or rescission and of any change in the location of any such other office or agency.
The Issuer hereby designates the Corporate Trust Office of the Registrar as one such office or agency of the Issuer in accordance with
Section 2.03 hereof.
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Section 4.03 Reports and Other Information.
(a) So long as any Notes are outstanding, unless the Company is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act or is a “voluntary filer” and, in each case and otherwise complies with such reporting requirements, the Company or Holdings must provide without cost in electronic format to the Trustee and the Holders:
(1) within 60 days of the end of the first three fiscal quarters of any fiscal year (or, if later, any permitted extension as
provided for by the SEC from time to time) (other than any fiscal quarter end that coincides with the end of a fiscal year), all quarterly and, within 90 days of the end of any fiscal year, annual financial statements (including footnote disclosure)
that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K, as applicable, if the Company or Holdings, as applicable, were required to
file these Forms, and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s
certified independent accountants; provided that in no event shall such financial statements or reports be required to comply with (w) Rule 3-10 of
Regulation S-X promulgated by the SEC (or such other rule or regulation that amends, supplements or replaces such Rule 3-10, including for the avoidance of
doubt, Rules 13-01 or 13-02 of Regulation S-X promulgated by the SEC), (x)
Rule 3-09 of Regulation S-X (or such other rule or regulation that amends, supplements or replaces such
Rule 3-09), (y) Rule 3-16 of Regulation S-X (or such other rule or regulation that amends, supplements or replaces
such Rule 3-16 or (z) any requirement to otherwise include any schedules or separate financial statements of any of the Company’s Subsidiaries, Affiliates or equity method investees; and
(2) within 15 Business Days (or such longer time if permitted under Form 8-K)
after the occurrence of an event required to be therein reported, all current reports that would be required to be filed with the SEC on Form 8-K if the Company or Holdings, as applicable, were required
to file these reports to the extent such reports relate to the occurrence of any event which would require an 8-K to be filed (except to the extent the Company reasonably and in good faith determines that such
an event is not material in any respect to the Holders of the Notes) pursuant to the following Items set forth in the instruction to Form 8-K: (i) Item 1.01 Entry into a Material Definitive
Agreement; (ii) Item 1.02 Termination of a Material Definitive Agreement; (iii) Item 1.03 Bankruptcy or Receivership, (iv) Item 2.01 Completion of Acquisition or Disposition, (v) Item 2.03 Creation of a Direct
Financial Obligation or an Obligation under an Off Balance Sheet Arrangement, (vi) Item 2.04 Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement, (vii) Item 2.05 Costs Associated with Exit or Disposal Activities, (viii) Item 2.06 Material Impairment, (ix) Item 4.01 Change in Certifying
Accountant, (x) Item 4.02 Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review, (xi) Item 5.01 Change in Control,
(xii) Item 5.02 (a), (b), (c)(1) and (d)(1)-(3) Departure of Director or Certain Officers; Election of Directors; Appointment of Certain Officers (it being understood that executive compensation matters need not be disclosed) and
(xiii) Item 9.01 (a) and (b) Financial Statements and Exhibits (it being understood that exhibits need not otherwise be disclosed or provided);
provided, however, that (A) reports provided pursuant to clauses (i) and (ii) of this
Section 4.03(a) shall not be required to comply with (i) Sections 302 (Corporate Responsibility for Financial Reports) or 404 (Management Assessment of Internal Controls) of the Sarbanes-Oxley Act of 2002, and
Items 307 (Disclosure Controls and Procedures), 308 (Internal Control Over Financial Reporting) and 402 (Executive Compensation) of Regulation S-K; or (ii) Regulation G under the Exchange
Act or Item 10(e) of Regulation S-K with respect to any non-U.S. GAAP financial measures contained therein, (B) reports and information provided
pursuant to clauses (i) and (ii) of this Section 4.03(a) shall not be required to be accompanied by any exhibits other than financial statements of businesses acquired or credit agreements, notes or other material debt
instruments, (C) the contents of any reports provided pursuant to clauses (i) and (ii) of this Section 4.03(a) shall be limited in scope to the type of disclosure set forth in the Offering Memorandum and
(D) the availability of the foregoing reports on the Commission’s EDGAR filing system or a publicly available website of the Company will be deemed to satisfy the foregoing delivery requirements.
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(b) The Company will deliver with each report referred to in clause (i) of this
Section 4.03(a), a schedule eliminating Unrestricted Subsidiaries and reconciling the same to the financial statements in such report.
(c) The Company and the Guarantors also agree that, for so long as any Notes remain outstanding, the Company will furnish to the Holders of the
Notes and upon their request, to prospective investors and securities analysts, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Any and all Defaults or Events of Default arising from a failure to comply with this section shall be deemed cured (and the Company shall be
deemed to be in compliance with this covenant) upon furnishing or filing such information or report as contemplated by this section (but without regard to the date on which such information or report is so furnished or filed).
The Company shall use its commercially reasonable efforts, consistent with its judgment as to what is prudent at the time, to participate in
quarterly conference calls after the delivery of the information referred to in clause (1) above (which may be a single conference call together with investors and lenders holding other securities or Indebtedness of the Company and/or its
Restricted Subsidiaries and/or any parent company of the Company) to discuss financial and operating results and related matters unless the Company reasonably determines that to do so would conflict with applicable securities laws. The Company shall
issue a press release or otherwise provide notice of such conference call in the same manner in which information was delivered pursuant to clause (1) above which will provide the date and time of any such call and will direct holders,
prospective investors and securities analysts to contact the investor relations office of the Company to obtain access to the conference call, or by making it available on a public website on which the reports required by this covenant are posted
along with details regarding the times and dates of conference calls required above and information on how to obtain access to such conference calls, or on Intralinks or any comparable password protected online data system, which may require a
confidentiality acknowledgement. Notwithstanding the foregoing, if the Company provides notice of a conference call with the investors and provides the Holders access to such call, the Holders, including any requesting Holder, may not request a
separate conference call.
To the extent Holdings, or any other direct or indirect parent company of the Company remains or becomes a
guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided that the
same is accompanied by audited, reviewed, or included in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section, as applicable, consolidating information that explains in reasonable
detail the differences between the balance sheets and statement of operations information relating to Holdings or such other parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis,
on the other hand.
To the extent any such reports, information, and documents are delivered to the Trustee, such delivery is for
informational purposes only and the Trustee’s receipt of such will not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including compliance by the Issuer and the
Company Parties with any of their covenants under the Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificate). Upon request of the Trustee, the Issuer shall provide the Trustee with copies of any
information or documents posted to any non-public and/or password protected website.
Section 4.04
Compliance Certificate.
(a) The Issuer and each Guarantor shall deliver to the Trustee, within 90 days after the end of each
fiscal year ending after the Issue Date, a certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Issuer and its Restricted Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to such Officer
signing such certificate, that to the best of his, her or their knowledge the Issuer has kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and are not in default in the performance or
observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he, she or they may have knowledge and what action the Issuer is taking or propose to
take with respect thereto).
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(b) When any Default has occurred and is continuing under this Indenture, or if the Trustee
or the holder of any other evidence of Indebtedness of the Issuer or any Subsidiary gives any notice or takes any other action with respect to a claimed Default, the Issuer shall promptly (which shall be no more than five (5) Business Days)
deliver to the Trustee by registered or certified mail or delivered by electronic transmission an Officer’s Certificate specifying such event and what action the Issuer proposes to take with respect thereto.
Section 4.05 Taxes.
The
Issuer shall pay, and shall cause each of their Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate negotiations or proceedings
or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.
Section 4.06 Stay, Extension and
Usury Laws.
The Issuer and each of the Guarantors covenant (to the extent that they may lawfully do so) that they shall not at
any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee or any Agent, but shall suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.07 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to:
(A) declare or pay any dividend or make any payment or distribution on account of the Company’s, or any of its Restricted
Subsidiaries’ Equity Interests, including any dividend or distribution payable in connection with any merger or consolidation other than:
(i) dividends, payments or distributions by the Company payable solely in Equity Interests (other than Disqualified Stock) of
the Company; or
(ii) dividends, payments or distributions by a Restricted Subsidiary so long as, in the case of any
dividend, payment or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata
share of such dividend, payment or distribution in accordance with its Equity Interests in such class or series of securities;
(B) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Company or any direct or
indirect parent of the Company, including in connection with any merger or consolidation;
(C) make any principal payment
on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness, other than:
(a) Indebtedness permitted under clauses (7) and (8) of Section 4.09(b) hereof; or
(b) the purchase, repurchase or other acquisition of Subordinated Indebtedness purchased in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase or acquisition; or
(D) make any Restricted Investment,
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(all such payments and other actions set forth in clauses (I) through (IV) above (other
than any exception thereto contained in clauses (I) through (IV)) being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:
(1) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(2) immediately after giving effect to such transaction on a pro forma basis, the Issuer could incur $1.00 of additional
Indebtedness under Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its Restricted Subsidiaries after January 1, 2026 (including Restricted Payments permitted by clauses (1), (2) (with respect to the payment of dividends on Refunding Capital Stock
pursuant to clause (b) thereof only), (6)(c), (9), (13), (14) (to the extent not deducted in calculating Consolidated Net Income), (17) and (18) of Section 4.07(b) hereof (provided, that Restricted Payments pursuant to the
foregoing clauses (13) or (17) shall not reduce amounts available pursuant to this clause (3) below zero), but excluding all other Restricted Payments permitted by Section 4.07(b) hereof), is less than the sum, without
duplication, of:
(a) 50% of the aggregate Consolidated Net Income of the Company for the period (taken as one accounting
period) beginning January 1, 2026, to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment; plus
(b) 100% of the aggregate net cash proceeds and the fair market value, as determined in good faith by the Company, of
marketable securities or other property received by the Company since January 1, 2026 (other than net cash proceeds to the extent such net cash proceeds have been used to incur Indebtedness, Disqualified Stock or Preferred Stock pursuant to
clause (12)(a) of Section 4.09(b) hereof) from the issue or sale of:
(i) (A) Equity Interests of the Company,
including Treasury Capital Stock, but excluding cash proceeds and the fair market value, as determined in good faith by the Company, of marketable securities or other property received from the sale of:
(x) Equity Interests to members of management, directors or consultants of the Company, any direct or indirect parent company
of the Company and the Company’s Subsidiaries after January 1, 2026 to the extent such amounts have been applied to Restricted Payments made in accordance with clause (4) of Section 4.07(b) hereof and
(y) Designated Preferred Stock; and
(B) to the extent such net cash proceeds are actually contributed to the Company, Equity Interests of the Company’s direct or indirect
parent companies (excluding contributions of the proceeds from the sale of Designated Preferred Stock of such companies or contributions to the extent such amounts have been applied to Restricted Payments made in accordance with clause (4) of
Section 4.07(b) hereof); or
(ii) debt securities of the Company that have been converted into or exchanged for such
Equity Interests of the Company;
provided, however, that this clause (b) shall not include the proceeds from
(W) Refunding Capital Stock, (X) Equity Interests or convertible debt securities of the Company sold to a Restricted Subsidiary, (Y) Disqualified Stock or debt securities that have been converted into Disqualified Stock or
(Z) Excluded Contributions; plus
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(c) 100% of the aggregate amount of cash and the fair market value, as
determined in good faith by the Company, of marketable securities or other property contributed to the capital of the Company following January 1, 2026 other than (i) net cash proceeds to the extent such net cash proceeds have been used to
incur Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of Section 4.09(b) hereof, (ii) contributions from a Restricted Subsidiary or (iii) any Excluded Contributions; plus
(d) 100% of the aggregate amount received in cash and the fair market value, as determined in good faith by the Company, of
marketable securities or other property received by the Issuer or any Restricted Subsidiary by means of:
(i) the sale or
other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted
Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments by the Company or its Restricted Subsidiaries, in each case after January 1, 2026; or
(ii) the sale (other than to the Company or a Restricted Subsidiary) of the stock or other Equity Interests of an Unrestricted
Subsidiary or a Joint Venture or a distribution or dividend from an Unrestricted Subsidiary or a Joint Venture (other than in each case to the extent the Investment in such Unrestricted Subsidiary or Joint Venture was made by the Company or a
Restricted Subsidiary pursuant to clause (7) of Section 4.07(b) hereof or to the extent such Investment constituted a Permitted Investment) after January 1, 2026; or
(ii) the net reduction in Restricted Investments resulting from dividends, repayments of loans or advances, or other transfers
of assets in each case that are received by the Issuer or any of its Restricted Subsidiaries from any Person (including, without limitation, Unrestricted Subsidiaries) after January 1, 2026; plus
(e) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after the Issue Date, the fair
market value of the Investment in such Unrestricted Subsidiary, at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted
Subsidiary was made by the Company or a Restricted Subsidiary pursuant to clause (7) of Section 4.07(b) hereof or to the extent such Investment constituted a Permitted Investment; plus
(f) $550.0 million.
The
provisions of Section 4.07(a) hereof shall not prohibit:
(1) the payment of any dividend or distribution
within 75 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Indenture;
(2) (a) the redemption, repurchase, repayment, retirement or other acquisition of any Equity Interests (“Treasury
Capital Stock”) or Subordinated Indebtedness of the Company or any Equity Interests of any direct or indirect parent company of the Company, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary) of, Equity Interests of the Company or any direct or indirect parent company of the Company to the extent contributed to the Company (in each case, other than any Disqualified Stock and any Excluded Contributions)
(“Refunding Capital Stock”) and (b) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under clause (6) of this Section 4.07(b),
the declaration and payment of dividends or distributions on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, repay, retire or otherwise acquire any Equity Interests of any direct
or indirect parent company of the Company) in an aggregate amount per year no greater than the aggregate amount of dividends or distributions per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such
retirement;
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(3) the defeasance, redemption, repurchase, repayment, or other acquisition
or retirement of Subordinated Indebtedness of the Company or a Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the Company or a Guarantor, as the case may be, which is incurred in
compliance with Section 4.09 hereof so long as:
(a) the principal amount (or accreted value, if applicable) of such
new Indebtedness does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Subordinated Indebtedness being so redeemed, repurchased, repaid, acquired or retired for value, plus the
amount of any reasonable premium (including reasonable tender premiums), defeasance costs and any reasonable fees and expenses incurred in connection with the issuance of such new Indebtedness;
(b) such new Indebtedness is subordinated to the Notes or the applicable Guarantee at least to the same extent as such
Subordinated Indebtedness so purchased, exchanged, redeemed, repurchased, repaid, defeased, acquired or retired for value;
(c) such new Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of the
Subordinated Indebtedness being so redeemed, repurchased, repaid, defeased, acquired or retired; and
(d) such new
Indebtedness has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness being so redeemed, repurchased, repaid, defeased, acquired or retired;
(4) a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests
(other than Disqualified Stock) of the Company or any of its direct or indirect parent companies held by any future, present or former employee, director or consultant of the Company, any of its Subsidiaries or any of its direct or indirect parent
companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided, however, that the aggregate Restricted Payments made under this clause (4) do not
exceed in any calendar year $60.0 million (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $80.0 million in any calendar
year); provided, further that such amount in any calendar year may be increased by an amount not to exceed:
(a) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Company and, to the extent
contributed to the Company, Equity Interests of any of the Company’s direct or indirect parent companies, in each case to members of management, directors or consultants of the Company, any of its Subsidiaries or any of its direct or indirect
parent companies that occurs after January 1, 2026, to the extent the cash proceeds from the sale of such Equity Interests are not Excluded Contributions and have not otherwise been applied to the payment of Restricted Payments by virtue of
clause (3) of Section 4.07(a) hereof; plus
(b) the cash proceeds of key man life insurance
policies received by the Company or any Restricted Subsidiary after the January 1, 2026; less
(c) the amount
of any Restricted Payments previously made with the cash proceeds described in clauses (a) and (b) of this clause (4);
and
provided further that cancellation of Indebtedness owing to the Company or any Restricted Subsidiary from members of management of the Company, any of the Company’s direct or indirect parent companies or any of the
Company’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Company or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this
Section 4.07 or any other provision of this Indenture;
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(5) the declaration and payment of dividends to holders of any class or
series of Disqualified Stock of the Company or any of its Restricted Subsidiaries or any class or series of Preferred Stock of a Restricted Subsidiary issued in accordance with Section 4.09 hereof to the extent such dividends are
included in the definition of “Fixed Charges”;
(6) (a) the declaration and payment of dividends or
distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Company after January 1, 2026;
(b) the declaration and payment of dividends or distributions to a direct or indirect parent company of the Company, the
proceeds of which will be used to fund the payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of such parent corporation issued after January 1, 2026,
provided that the amount of dividends or distributions paid pursuant to this clause (b) shall not exceed the aggregate amount of cash actually contributed to the Company from the sale of such Designated Preferred Stock; or
(c) the declaration and payment of dividends or distributions on Refunding Capital Stock that is Preferred Stock in excess of
the dividends or distributions declarable and payable thereon pursuant to clause (2) of this Section 4.07(b);
provided, however, in the case of each of clauses (a), (b) and (c) of this clause (6), that for the most recently ended four
full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock or the declaration of such dividends or distributions on Refunding Capital Stock that is
Preferred Stock, after giving effect to such issuance or declaration on a pro forma basis, the Company and its Restricted Subsidiaries on a consolidated basis would have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00;
(7) Investments in Unrestricted Subsidiaries and Joint Ventures having an aggregate fair market value, taken together with all
other Investments made pursuant to this clause (7) that are at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary or Joint Venture to the extent the proceeds of such sale do not consist of cash or marketable
securities, not to exceed the greater of $100.0 million and an amount equal to 2.5% of Total Assets at the time of making of such Investment (with the fair market value of each Investment being measured at the time made and without giving
effect to subsequent changes in value);
(8) repurchases of Equity Interests deemed to occur upon exercise of stock options
or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants and any purchase, repurchase, redemption or other acquisition or retirement for value of Equity Interests made in lieu of withholding taxes in
connection with any exercise or exchange of stock or unit options, warrants, incentives or rights to acquire Equity Interests;
(9) the declaration and payment of dividends or distributions on the Company’s common stock (or the payment of dividends
or distributions to any direct or indirect parent entity to fund a payment of dividends on such entity’s common stock), of up to 6.0% per annum of the net cash proceeds received by or contributed to the Company in or from any public offering,
other than public offerings with respect to the common stock of the Company or any of its direct or indirect parent companies registered on Form S-8 and other than any public sale constituting an Excluded
Contribution;
(10) Restricted Payments that are made with Excluded Contributions;
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(11) Restricted Payments in an aggregate amount taken together with all
other Restricted Payments made pursuant to this clause (11) not to exceed the greater of $100.0 million and 2.5% of Total Assets at the time made;
(12) distributions or payments of Receivables Fees;
(13) Restricted Payments in an aggregate amount not to exceed $200.0 million so long as (a) the Consolidated Total
Debt Ratio on the last day of each of the two consecutive most recently completed fiscal quarters for which internal financial statements are available at the time of such Restricted Payment is no greater than 2.00 to 1.00 and (b) after giving
pro forma effect to such Restricted Payment the Consolidated Total Debt Ratio for the most recently completed fiscal quarter for which internal financial statements are available would be no greater than 2.00 to 1.00;
(14) the repurchase, repayment, redemption or other acquisition or retirement for value of any Subordinated Indebtedness in
accordance with the provisions similar to those described under Sections 4.10 and Section 4.14 hereof; provided that all Notes validly tendered by Holders in connection with a Change of Control Offer or Asset Sale Offer, as
applicable, have been repurchased, repaid, redeemed or acquired for value;
(15) Permitted Holdings Payments;
(16) the distribution, by dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Company or a
Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents);
(17) so long as the common stock of Holdings remains listed on a national securities exchange or quoted on the Nasdaq Stock
Market, other Restricted Payments not to exceed in any calendar year $100.0 million (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $200.0 million in any calendar year);
(18) payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as
a result of, exercise of appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger or transfer of all or substantially all of the assets of the
Issuer and its Restricted Subsidiaries, taken as a whole, that complies with Section 5.01;
(19) the payment of
cash in lieu of the issuance of fractional shares of Equity Interests in connection with any dividend, split or combination thereof or the exercise or conversion of securities exercisable or convertible into Equity Interests of the Company or any
direct or indirect parent of the Company (and payment of dividends to any direct or indirect parent of the Company for such purpose); and
(20) Restricted Payments for the purposes of the formation or investment in a joint venture in an aggregate amount not to
exceed the greater of (a) $200.0 million and (b) 5.0% of Total Assets (measured at the time of the making of such Restricted Payment).
provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (11), (13), (16) and
(17) of this Section 4.07(b), no Event of Default shall have occurred and be continuing or would occur as a consequence thereof.
For the purposes of determining compliance with this Section 4.07, (a) in the event that a Restricted Payment or
Investment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in the preceding clauses (1) through (20) and/or one or more of the exceptions contained in the definition of
“Permitted Investments,” or is permitted pursuant to the first paragraph of this Section 4.07, the Issuer will be permitted to divide or classify (or later divide, classify or reclassify in whole or in part in
its sole discretion) such Restricted Payment or Investment (or portion thereof) among such clauses (1) through (20) and such first paragraph and/or one or more of the exceptions contained in the definition of “Permitted
Investments,” in any manner that
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complies with this Section 4.07 and (b) the amount of any Restricted Payment (other than cash) will be the value shown on the books of the Company on the date of
the Restricted Payment or the Restricted Investment proposed to be made of the assets or securities comprising such Restricted Payment or Restricted Payment.
(b) The Company shall not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the last sentence of the
definition of “Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid) in the
Subsidiary so designated shall be deemed to be Restricted Payments in an amount determined as set forth in the last sentence of the definition of “Investments.” Such designation shall be permitted only if a Restricted Payment in such
amount would be permitted at such time, whether pursuant to Section 4.07(a) hereof or under clause (7), (10), (11), (13) or (17) of Section 4.07(b) hereof, or pursuant to the definition of “Permitted
Investments,” and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
Section 4.08 Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries that are not Guarantors to create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(1) (a) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries on its Capital Stock
or with respect to any other interest or participation in, or measured by, its profits, or (b) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof shall not apply to encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Issue Date, including pursuant to the Senior Credit Facilities,
Intermediation Agreements, any Hedge Agreements, the RINs Master Agreement and, in each case, any related documentation;
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature
discussed in clause (3) of Section 4.08(a) hereof on the property so acquired;
(4) applicable law or any
applicable rule, regulation or order;
(5) any agreement or other instrument of a Person acquired by the Company or any of
its Restricted Subsidiaries in existence at the time of such acquisition or at the time it merges with or into the Company or any of its Restricted Subsidiaries or assumed in connection with the acquisition of assets from such Person (but, in any
such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and
its Subsidiaries, so acquired or the property or assets so assumed;
(6) contracts for the sale of assets, including
customary restrictions with respect to a Subsidiary of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
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(7) (x) Secured Indebtedness permitted to be incurred pursuant to
Section 4.09 hereof and (y) Liens permitted to be incurred pursuant to Section 4.12 hereof, in each case, that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary
course of business;
(9) Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be
incurred subsequent to the Issue Date pursuant to the provisions of Section 4.09 hereof;
(10) customary
provisions in joint venture agreements and other agreements or arrangements relating solely to such joint venture;
(11)
customary provisions contained in leases, licenses or similar agreements, including with respect to intellectual property and other agreements, in each case, entered into in the ordinary course of business;
(12) any Specified Inventory or other feedstock supply agreements, natural gas supply agreements, any offtake agreements
relating to Specified Inventory, any Intermediation Agreement or any similar agreements or arrangements, in each case, that impose restrictions of the nature described in clause (3) of Section 4.08(a) hereof on the property so
acquired or disposed;
(13) any hydrogen supply or any similar agreements or arrangements, in each case, that impose
restrictions of the nature described in clause (3) of Section 4.08(a) hereof on the property so acquired or disposed;
(14) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Company are
necessary or advisable to effect such Receivables Facility;
(15) provisions with respect to the disposition or
distribution of assets or property in exchange agreements, trading agreements, netting agreements, consignment agreements, operating agreements, construction agreements, supply agreements, terminal agreements, storage agreements, purchase or sale of
offtake agreements, Hedge Agreements, joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment)
entered into in the ordinary course of business consistent with past practice, which limitation is applicable only to the assets that are the subject of such agreements;
(16) customary provisions contained in leases, sub-leases, licenses or sub-licenses and other agreements, in each case, entered into in the ordinary course of business or as is typical in the same or similar industries in which the Issuer or the Restricted Subsidiaries engage from time
to time;
(17) restrictions in agreements or instruments that prohibit the payment or making of dividends other than on a
pro rata basis; and
(18) any encumbrances or restrictions of the type referred to in clauses (1), (2) and (3) of
Section 4.08(a) hereof imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses
(1) through (14) of this Section 4.08(b); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company,
no more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
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Section 4.09 Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and
Preferred Stock.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to create, incur, issue,
assume, guarantee or otherwise become contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Company shall
not issue any shares of Disqualified Stock and shall not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided, however, that the Company may incur Indebtedness (including Acquired
Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary (other than Foreign Subsidiaries) may incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of Preferred Stock, if
the Fixed Charge Coverage Ratio on a consolidated basis for the Company and its Restricted Subsidiaries’ most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date on which
such additional Indebtedness is incurred or such Disqualified Stock or Preferred Stock is issued would have been at least 2.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom),
as if the additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period.
(b) The provisions of Section 4.09(a) hereof shall not apply to:
(1) the incurrence of Indebtedness under Credit Facilities by the Company or any of its Restricted Subsidiaries and the
issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof), up to the greater of (a)
$1,800.0 million and (b) the Borrowing Base;
(2) the incurrence by the Company and any Guarantor of Indebtedness
represented by the Notes (including any Guarantee) (other than any Additional Notes);
(3) Indebtedness of the Company and
its Restricted Subsidiaries in existence on the Issue Date (other than Indebtedness described in clauses (1) and (2) of this Section 4.09(b)) after giving effect to the use of proceeds set forth in the Offering Memorandum;
(4) Indebtedness (including Capitalized Lease Obligations), Disqualified Stock and Preferred Stock incurred by the Company or
any of its Restricted Subsidiaries, in each case, for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair or improvement of property (real or personal), plant or equipment or other
fixed or capital assets used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets in an aggregate principal amount, as at the date of such incurrence (including all
Refinancing Indebtedness incurred to refinance any other Indebtedness, Disqualified Stock and/or Preferred Stock incurred pursuant to this clause (4)) not to exceed the greater of $200.0 million and 5.0% of Total Assets at the time incurred;
provided, however, that such Indebtedness exists at the date of such purchase or other transaction or is incurred within 270 days thereafter;
(5) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of business, including letters of credit in respect of workers’ compensation claims or other Indebtedness with respect to reimbursement type obligations regarding workers’
compensation claims; provided that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(6) Indebtedness arising from agreements of the Company or its Restricted Subsidiaries providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds
including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in
value) actually received by the Company and the Restricted Subsidiaries in connection with such disposition;
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(7) Indebtedness of the Company to a Restricted Subsidiary; provided
that any such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor is expressly subordinated in right of payment to the Notes; provided further that any subsequent issuance or transfer of any Capital Stock or any other
event which results in any Restricted Subsidiary holding such Indebtedness ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Company or another Restricted Subsidiary) shall be deemed, in
each case, to be an incurrence of such Indebtedness;
(8) Indebtedness of a Restricted Subsidiary owing to the Company or
another Restricted Subsidiary; provided that if a Guarantor incurs such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor, such Indebtedness is expressly subordinated in right of payment to the Guarantee of the Notes;
provided further that any subsequent issuance or transfer of any Capital Stock or any other event which results in any Restricted Subsidiary holding such Indebtedness ceasing to be a Restricted Subsidiary or any other subsequent
transfer of any such Indebtedness (except to the Company or another Restricted Subsidiary) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (8);
(9) shares of Preferred Stock of the Company or a Restricted Subsidiary issued to the Company or another Restricted Subsidiary;
provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred
Stock (except to the Company or another of its Restricted Subsidiaries) shall be deemed in each case to be an issuance of such shares of Preferred Stock not permitted by this clause (9);
(10) Hedging Obligations (i) other than Hedging Obligations covered by clause (ii) below, in each case to the extent
that they are intended to be commercially or economically appropriate to mitigate or manage risks, respond to commodity market conditions and/or implement optimization strategies in the conduct and management of the Company’s and its
Restricted Subsidiaries’ business and (ii) related to interest rates so long as the notional principal amount of such Hedging Obligations at the time incurred does not exceed the aggregate principal amount of the Indebtedness to which
such Hedging Obligations relate at such time, and unrealized losses or charges in respect of any such Hedging Obligations permitted under this clause (10);
(11) obligations in respect of workers’ compensation claims, self-insurance obligations, performance, bid, appeal and
surety bonds, indemnity agreements and completion guarantees or other similar bonds or obligations incurred or provided by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(12) (a) Indebtedness or Disqualified Stock of the Company and Indebtedness, Disqualified Stock or Preferred Stock of the
Company or any Restricted Subsidiary equal to 100% of (i) the net cash proceeds received by the Company since immediately after the Issue Date from (x) the issue or sale of Equity Interests of the Company or (y) cash contributed to
the capital of the Company or (ii) in the case of issuances of Equity Interests of the Company as consideration for the acquisition of assets or other property, the fair market value of such assets or other property so acquired by the Company
since immediately after the Issue Date (in each case, other than proceeds of an Excluded Contribution or from the issue or sale of Disqualified Stock or sales of Equity Interests to the Company or any of its Subsidiaries) as determined, in the case
of clause (i) above, in accordance with clauses (3)(b) and (3)(c) of Section 4.07(a) hereof to the extent such net cash proceeds or cash have not been applied pursuant to such clauses to make Restricted Payments or to make other
Investments, payments or exchanges pursuant to such clauses or pursuant to Section 4.07(b) hereof or to make Permitted Investments (other than Permitted Investments specified in clauses (1), (2) and (3) of the definition thereof)
and, in the case of clause (ii) above, as determined by the Company in its reasonable judgment, and (b) Indebtedness or Disqualified Stock of the Company and Indebtedness, Disqualified Stock or Preferred Stock of the Company or any
Guarantor not otherwise permitted hereunder in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then
outstanding
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and incurred pursuant to this clause (12)(b), does not at any one time outstanding including any Refinancing Indebtedness in respect thereof exceed the greater of $200.0 million and 5.0% of
Total Assets at the time incurred or issued (it being understood that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (12)(b) shall cease to be deemed incurred or outstanding for purposes of this clause
(12)(b) but shall be deemed incurred for the purposes of Section 4.09(a) hereof from and after the first date on which the Company or such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or Preferred Stock
under Section 4.09(a) hereof without reliance on this clause (12)(b));
(13) Refinancing Indebtedness incurred
in respect of any Indebtedness incurred as permitted under Section 4.09(a) hereof and clauses (2), (3) and (12)(a) of this Section 4.09(b), this clause (13) and clause (14) of this Section 4.09(b);
(14) Indebtedness, Disqualified Stock or Preferred Stock of (x) the Company or a Restricted Subsidiary incurred to finance
an acquisition or (y) Persons that are acquired by the Company or any Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the terms of this Indenture; provided, that after giving effect to such
acquisition or merger, either
(a) the Company would be permitted to incur at least $1.00 of additional Indebtedness under
Section 4.09(a) hereof; or
(b) the Fixed Charge Coverage Ratio of the Company and the Restricted Subsidiaries
is equal to or greater than immediately prior to such acquisition or merger;
(15) Indebtedness arising from the honoring
by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five Business Days of its incurrence;
(16) Indebtedness of the Company or any of its Restricted Subsidiaries supported by a letter of credit issued pursuant to
any Credit Facilities, in a principal amount not in excess of the stated amount of such letter of credit;
(17) (a) any
guarantee by the Company or a Restricted Subsidiary of Indebtedness or other obligations of any Restricted Subsidiary so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this
Indenture; or
(b) any guarantee by a Restricted Subsidiary of Indebtedness of the Company; provided that such
guarantee is incurred in accordance with Section 4.15 hereof;
(18) Indebtedness of the Company or any of its
Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements in each case,
incurred in the ordinary course of business;
(19) Indebtedness issued by the Company or any of its Restricted Subsidiaries
to current or former officers, directors and employees thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of the Company or any direct or indirect parent company of
the Company to the extent described in clause (4) of Section 4.07(b) hereof;
(20) Indebtedness of Foreign
Subsidiaries of the Company incurred in an amount, not to exceed, at any one time outstanding and together with any Indebtedness incurred under this clause (20) the sum of (i) 90% of the book value of accounts of the Foreign Subsidiaries with
respect to investment grade obligors plus (ii) 85% of the book value of accounts of the Foreign Subsidiaries with respect to non-investment grade obligors plus (iii) 80% of the cost of
hydrocarbon inventory of the Foreign Subsidiaries plus (iv) 100% of cash and Cash Equivalents in deposit accounts of the Foreign Subsidiaries subject to a control agreement (it being understood that any Indebtedness incurred pursuant to this
clause (20) shall cease to be deemed incurred or outstanding for purposes of this clause (20) but shall be deemed incurred for the purposes of the first paragraph of this covenant from and after the first date on which such Foreign
Subsidiary could have incurred such Indebtedness under the first paragraph of this covenant without reliance on this clause (20);
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(21) customer deposits and advance payments received in the ordinary course
of business from customers for goods purchased in the ordinary course of business;
(22) Indebtedness owed to banks and
other financial institutions incurred in the ordinary course of business of the Company and its Restricted Subsidiaries with such banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances of
the Company and its Restricted Subsidiaries;
(23) Limited Recourse Purchase Money Indebtedness and any Refinancing
Indebtedness in respect thereof;
(24) buy-sell arrangements with respect to
Specified Inventory, renewable identification numbers and biodiesel credits incurred in the ordinary course of business, consistent with past practices and not for speculative purposes, including the RINs Master Agreement;
(25) to the extent constituting Indebtedness, obligations under any crude oil or other feedstock supply agreements, natural gas
supply agreements, hydrogen supply agreements or off-take agreements relating to Specified Inventory, including any Intermediation Agreement, or any similar type of supply or offtake agreement (and any
guarantee provided by the Company or any Restricted Subsidiary with respect to the foregoing) that (i) is entered into on prevailing market terms or (ii) has terms substantially similar to such agreements or not materially more
disadvantageous to the Holders, taken as a whole, compared to the terms of such agreements in effect on the Issue Date, taken as a whole, and including Refinancing Indebtedness in respect thereof;
(26) Indebtedness incurred in connection with Environmental and Necessary Capex in an amount not to exceed the greater of
$200.0 million and 5.0% of Total Assets (at the time incurred) at any time outstanding in the aggregate;
(27)
Indebtedness in respect of letters of credit issued (x) in connection with the purchase of crude oil or feedstock in the ordinary course of business and/or (y) pursuant to one or more letters of credit in connection with the purchase of
foreign crude oil or feedstock;
(28) the incurrence by the Company or any of its Restricted Subsidiaries of any liability
in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability (x) is the result of the Company’s or any such Restricted Subsidiary’s being a general
partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate liability incurred under this subclause (x) and then
outstanding does not exceed $50.0 million or (y) consists of Liens permitted pursuant to clause (31) of the definition of “Permitted Liens” and any guarantee given solely to support such Liens, which guarantee is not
recourse to the Company or any Restricted Subsidiary;
(29) Indebtedness arising from any Sale and Leaseback Transaction
and any refinancing, refunding, renewal or extension of any such Indebtedness, provided that, except to the extent otherwise permitted hereunder, the principal amount of any such Indebtedness is not increased above the principal amount
thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and the direct and contingent obligors with respect to such Indebtedness are not changed;
(30) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Specified Inventory
balancing positions arising in the ordinary course of business and consistent with past practice;
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(31) Indebtedness not to exceed the greater of $100.0 million and 2.5%
of Total Assets (measured at the time of incurrence) secured solely by real property and ancillary assets, proceeds and products thereof, of the Company or any of its Restricted Subsidiaries; and
(32) Indebtedness incurred by the Company or any Restricted Subsidiary of the Company to the extent that the net proceeds
thereof are deposited no later than 30 days after the incurrence of such Indebtedness to defease or to redeem or satisfy and discharge any Indebtedness.
(c) For purposes of determining compliance with this Section 4.09:
(1) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the
criteria of more than one of the categories of permitted Indebtedness, Disqualified Stock or Preferred Stock described in clauses (1) through (32) of Section 4.09(b) hereof or is entitled to be incurred pursuant to
Section 4.09(a) hereof, the Company, in its sole discretion, shall classify or reclassify such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) and shall only be required to include the amount and type
of such Indebtedness, Disqualified Stock or Preferred Stock in one of the above clauses or under Section 4.09(a) hereof; provided that all Indebtedness outstanding under the Credit Facilities on the Issue Date shall be treated as
incurred on the Issue Date under clause (1) of Section 4.09(b) hereof; and
(2) at the time of incurrence,
the Company shall be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in Sections 4.09(a) and 4.09(b) hereof.
Accrual of interest or dividends or distributions, the accretion of accreted value, the accretion or amortization of original issue discount
and the payment of interest or dividends or distributions in the form of additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same class will not be deemed to be an incurrence of Indebtedness, Disqualified Stock
or Preferred Stock for purposes of this Section 4.09. Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the
U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first
committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar denominated
restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of
such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced.
The principal amount of any
Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective
Indebtedness is denominated that is in effect on the date of such refinancing.
Notwithstanding anything in this Indenture to the
contrary, the Issuer shall not, and shall not permit any Restricted Subsidiary that is a Guarantor to incur any Indebtedness (including Acquired Indebtedness) that is expressly subordinated or junior in right of payment to any other Indebtedness of
the Issuer or such Guarantor, as the case may be, unless such Indebtedness is expressly subordinated in right of payment to the Notes or such Guarantor’s Guarantee to the extent and in the same manner as such Indebtedness is subordinated to
other Indebtedness of the Issuer or such Guarantor, as the case may be. For the purposes of this Indenture, Indebtedness that is unsecured shall not be deemed to be subordinated or junior to Secured Indebtedness merely because it is unsecured, and
Senior Indebtedness shall not be deemed to be subordinated or junior to any other Senior Indebtedness merely because it has a junior priority with respect to the same collateral.
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Section 4.10 Asset Sales.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or
by any Person assuming responsibility for, any liability, contingent or otherwise, in connection with such Asset Sale) at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company as of the date
of contractually agreeing to such Asset Sale, including as to the value of all non-cash consideration) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the aggregate consideration received by the Company or such
Restricted Subsidiary, as the case may be, from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of (I) cash or Cash Equivalents or (II) properties and capital assets to be used by the
Company or any Restricted Subsidiary in the business, or Capital Stock of a Person engaged in a Similar Business which becomes a Restricted Subsidiary of the Company, or any combination thereof; provided that the amount of:
(i) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the
footnotes thereto or, if incurred or increased subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such
incurrence or increase had taken place on the date of such balance sheet, as determined by the Company) of the Company or such Restricted Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes
or liabilities to the extent owed to the Company or any Restricted Subsidiary of the Company, that are canceled, repaid, terminated or otherwise assumed by the transferee of any such assets and for which, to the extent applicable, the Company or
such Restricted Subsidiary has been validly released from, or indemnified against, further liability,
(ii) any
securities, notes or other similar obligations, other than as set forth in clause (II) of this paragraph (2), received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted
Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale, and
(iii) any Designated Non-cash Consideration received by the Company or such Restricted
Subsidiary in such Asset Sale having an aggregate fair market value determined by the Company, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is
at that time outstanding, not to exceed the greater of $200.0 million and 5.0% of Total Assets at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item
of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash for purposes of this provision and for no other
purpose.
(b) Within 365 days (540 days in the case of an Event of Loss) after the receipt of any Net Proceeds of any Asset Sale, the
Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale, at its option:
(1)
to repay, repurchase, redeem or defease:
(i) Obligations under the Senior Credit Facilities; or
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(ii) Obligations under Senior Indebtedness that are secured by a Lien,
which Lien is permitted by this Indenture; or
(iii) Obligations under other Senior Indebtedness, provided that to
the extent the Issuer reduce their Obligations under Senior Indebtedness other than the Notes, the Issuer shall reduce their Obligations under the Notes on a pro rata basis as provided under Section 3.07 hereof through open-market
purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or offer to purchase Notes by making an offer (in accordance with the procedures set forth under Section 4.10(d) hereof) to all Holders to
purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(iv) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another
Restricted Subsidiary;
(2) to make (a) an Investment in any one or more businesses, provided that if such
business is not a Restricted Subsidiary, such Investment is in the form of the acquisition of Capital Stock and results in the Company or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such
business such that it constitutes a Restricted Subsidiary, (b) an Investment in properties, (c) capital expenditures or (d) acquisitions of other assets, that in each of clauses (a), (b), (c) and (d) are used or useful in a
Similar Business; or to replace the businesses properties, and/or assets that are the subject of such Asset Sale; or
(3)
if such Asset Sale was with respect to any Specified Asset, to make a Permitted Holdings Payment;
provided that, in the case of clause (2) of
this Section 4.10(b), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good
faith expectation that such Net Proceeds shall be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for
any reason before the Net Proceeds are applied in connection therewith then such Net Proceeds shall constitute Excess Proceeds.
(c) Any
Net Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds
$50.0 million (or at an earlier time, at the option of the Issuer), the Issuer will be required to make an offer to all Holders of the Notes and, if required or permitted or such earlier date if the Issuer so elects by the terms of any other
Indebtedness that is pari passu with the Notes or any Guarantee (“Pari Passu Indebtedness”), to the holders of such Senior Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal
amount of the Notes and such Pari Passu Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds
within ten Business Days after the date that Excess Proceeds exceed $50.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee and the Paying Agent. The Issuer may satisfy the foregoing
obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 365 days or with respect to Excess Proceeds of $50.0 million or less.
To the extent that the aggregate principal amount of Notes and Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture (such remaining Excess Proceeds, the “Remaining Excess Proceeds”). If the
aggregate principal amount of Notes or the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Registrar shall select the Notes to be purchased by lot or such other method in accordance with the
procedures of DTC, and the representatives for the holders of such other Pari Passu Indebtedness shall select such other Senior Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes and such
Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
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(d) Pending the final application of any Net Proceeds pursuant to this
Section 4.10, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this
Indenture.
(e) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations described in this Indenture by virtue thereof.
(f) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and
its Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01, and not by the provisions of this Section 4.10.
Section 4.11 Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate of the Company (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments or consideration in excess of the greater of $75.0 million and 2.0% of Total Assets at such time, unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable, taken as a whole, to the Company or its
relevant Restricted Subsidiary than those that would reasonably be expected to be obtained at such time in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person on an arm’s length basis; and
(2) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate payments or consideration in excess of $200.0 million, a resolution adopted by the majority of the board of directors of the Company approving such Affiliate Transaction and set forth in an Officer’s Certificate
certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(a).
(b) The provisions of
Section 4.11(a) hereof shall not apply to the following:
(1) transactions between or among the Holdings,
Company or any of its Restricted Subsidiaries, or an entity that becomes a Restricted Subsidiary as a result of such transaction, and any merger, consolidation or amalgamation of the Company and any parent entity; provided that such merger,
consolidation or amalgamation of the Company is otherwise in compliance with the terms of this Indenture and effected for a bona fide business purpose;
(2) Permitted Investments or Restricted Payments permitted by Section 4.07 hereof and in the definition of
“Permitted Investments”;
(3) transactions between the Company or any of its Restricted Subsidiaries and any
other Person, a director of which is also on the Board of Directors of the Company or any direct or indirect parent company of the Company, and such common director is the sole cause for such other Person to be deemed an Affiliate of the Company or
any of its Restricted Subsidiaries; provided, however, that such director abstains from voting as a member of the Board of Directors of the Company or any direct or indirect parent company of the Company, as the case may be, on any
transaction with such Person;
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(4) the payment of reasonable and customary fees paid to, and indemnities
provided for the benefit of, current or former officers, directors, employees or consultants of the Company, any of its direct or indirect parent companies or any of its Restricted Subsidiaries;
(5) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a
letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Company or its relevant
Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;
(6) any agreement as in effect as of the Issue Date, or entered into after the Issue Date in compliance with this
Section 4.11, or any amendment or replacement thereto (so long as any such amendment or replacement is not disadvantageous, in the good faith judgment of the Company, in any material respect to the Holders when taken as a whole as
compared to the applicable agreement as so amended or replaced);
(7) the existence of, or the performance by the Company
or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar
agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under any future amendment to any such existing agreement
or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders when taken as a
whole;
(8) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers
of goods or services or lessees or lessors of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair in the aggregate to the Company and its Restricted Subsidiaries, or
are on terms not materially less favorable to the Company and its Restricted Subsidiaries than those that would reasonably be expected to be available in a transaction with an unaffiliated party, in each case, in the reasonable determination of the
board of directors of the Company or the senior management thereof;
(9) (A) the issuance or sale of Equity Interests
(other than Disqualified Stock) of the Company to any director, officer, employee or consultant (or their respective estates, trusts, investment funds, investment vehicles or immediate family members) of the Company, any of its direct or indirect
parent companies or any of its Restricted Subsidiaries or (B) any contribution to the equity capital of the Company;
(10) sales of accounts receivable, or participations therein, in connection with any Receivables Facility;
(11) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company
solely because the Company, directly or indirectly, owns Equity Interests in, or controls, such Person;
(12) corporate
sharing arrangements with any Renewable Fuel Facility Affiliate with respect to general overhead and other administrative matters;
(13) any transaction with any Person who is not an Affiliate immediately before the consummation of such transaction that
becomes an Affiliate as a result of such transaction; provided that such transaction was not entered into in contemplation of such acquisition, merger or consolidation;
(14) payments or loans (or cancellation of loans) to employees or consultants of the Company, any of its direct or indirect
parent companies or any of its Restricted Subsidiaries and employment agreements, equity incentive plans and other similar arrangements with such employees or consultants which, in each case, are approved by the Company in good faith;
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(15) in the case of contracts for the gathering, transportation, marketing,
distributing, processing, storing or otherwise handling Specified Inventory or purchasing or selling goods or services or leasing property or activities or services reasonably related thereto, or other operational contracts, any such contracts that
are entered into in the ordinary course of business on terms (i) substantially similar to those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries with third parties or (ii) not materially less
favorable to the Company and its Restricted Subsidiaries than those that would reasonably be expected to be available in a transaction with an unrelated third party;
(16) (i) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted
Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (ii) any transaction related to the Equity Interests or pledges by the Company or any Restricted
Subsidiary of Equity Interests in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of such Unrestricted Subsidiaries or Joint Ventures as contemplated by clause (31) of the definition of “Permitted
Liens” and any guarantee given solely to support such pledge, which guarantee is not recourse to the Company or any Restricted Subsidiary;
(17) payments to or transactions with Affiliates on or with respect to debt securities or other Indebtedness or Equity
Interests of the Company or any Subsidiary on a similar basis as payments are made or offered to holders of such debt securities or Indebtedness or such Equity Interests held by Persons other than Affiliates;
(18) any sale of Equity Interests (other than Disqualified Stock) of the Issuer and any agreement that provides customary
registration rights to the equity holders of the Issuer or any direct or indirect parent of the Issuer and the performance of such agreements;
(19) any employment, equity award, equity contribution or equity appreciation, agreement or arrangement, consulting, service or
termination agreement, or reasonable and customary indemnification arrangements, entered into by the Issuer or any of its Restricted Subsidiaries or Holdings or any of its Subsidiaries with officers and employees of the Issuer or any of its
Restricted Subsidiaries or Holdings or any of its Subsidiaries and the payment of compensation to officers and employees of the Issuer or any of its Restricted Subsidiaries or Holdings or any of its Subsidiaries (including amounts paid pursuant to
employee benefit plans, employee stock option or similar plans), so long as such agreement or payment have been approved by a majority of the disinterested members of the board of the Issuer;
(20) payments by the Company (or any other direct or indirect parent of the Company) or any of the Restricted Subsidiaries
pursuant to any tax sharing, allocation or similar agreement; and
(21) dividends and distributions to the Company and its
Restricted Subsidiaries by any Unrestricted Subsidiary or Joint Venture.
Section 4.12 Liens.
The Issuer will not, and the Company will not permit any Restricted Subsidiary that is a Guarantor to create, incur, assume or suffer to exist
any Lien (except Permitted Liens) that secures obligations under any Indebtedness or any related guarantee, on any asset or property of the Issuer or any Restricted Subsidiary that is a Guarantor, or any income or profits therefrom, or assign or
convey any right to receive income therefrom, unless:
(1) in the case of Liens securing Subordinated Indebtedness, the
Notes and related Guarantees are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; or
(2) in all other cases, the Notes or the Guarantees of Restricted Subsidiaries are equally and ratably secured;
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except that the foregoing shall not apply to (a) Liens on the assets securing the Credit Facilities (on
the Issue Date and after giving effect to the issuance of the Notes and use of proceeds therefrom), securing Indebtedness permitted to be incurred under Credit Facilities, including any letter of credit facility relating thereto, that was permitted
by the terms of this Indenture to be incurred pursuant to clause (1) of Section 4.09(b) (including, after a Covenant Termination Event, Indebtedness of the type and in the amounts specified under such clause), and (b) Liens
securing Indebtedness (other than Indebtedness incurred under the Senior Credit Facilities) in an aggregate principal amount such that, at the time of incurrence and after giving pro forma effect thereto, the Consolidated Secured Debt Ratio would be
no greater than 2.00 to 1.0.
Section 4.13 Corporate Existence.
Except as provided in this Article IV and Article V hereof, the Issuer shall do or cause to be done all things necessary to preserve and keep
in full force and effect (i) its corporate existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended, restated,
supplemented or otherwise modified from time to time) of the Issuer or any such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses and franchises of the Issuer and its Restricted Subsidiaries; provided that the
Issuer shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries, if the Issuer in good faith shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Issuer and its Restricted Subsidiaries, taken as a whole.
Section 4.14 Offer to Repurchase
Upon Change of Control.
(a) If a Change of Control occurs that results in a Ratings Decline, unless the Issuer has previously
or concurrently mailed a redemption notice with respect to all the outstanding Notes as described under Section 3.07 hereof, the Issuer shall make an offer to purchase all of the outstanding Notes pursuant to the offer described below
(the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of
purchase, subject to the right of Holders of Notes of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control, the Issuer shall send notice of such Change of
Control Offer by first-class mail or by electronic transmission, with a copy to the Trustee and the Registrar, to each Holder of Notes to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of
DTC, with a copy to the Trustee and the Registrar, with the following information:
(1) that a Change of Control Offer is
being made pursuant to this Section 4.14 and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) the purchase price and the purchase date, which will be no earlier than 10 days nor later than 60 days from the date such
notice is mailed (the “Change of Control Payment Date”);
(3) that any Note not properly tendered will
remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such
Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their tendered
Notes and their election to require the Issuer to purchase such Notes, provided that the Paying Agent receives, not later than the close of business on the expiration date of the Change of Control Offer, an
e-mail, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered
Notes, or a specified portion thereof, and its election to have such Notes purchased;
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(7) that if the Issuer is redeeming less than all of the Notes, the Holders
of the remaining Notes will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or an integral multiple
of $1,000 thereafter;
(8) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change
of Control Offer is conditional on the occurrence of such Change of Control; and
(9) such other instructions, as
determined by the Issuer, as are consistent with this Section 4.14, that a Holder must follow.
The notice, if mailed in a manner
herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If (a) the notice is mailed in a manner herein provided and (b) any Holder fails to receive such notice or a Holder
receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice
without defect. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the
applicable securities laws and regulations and shall not be deemed to have breached their obligations under this Indenture by virtue thereof.
On the Change of Control Payment Date, the Issuer shall, to the extent permitted by law,
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or
portions thereof so tendered, and
(3) deliver, or cause to be delivered, to the Registrar for cancellation the Notes so
accepted together with an Officer’s Certificate to the Registrar stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(b) The Issuer shall not be required to make a Change of Control Offer following a Change of Control if (1) a third party makes the Change
of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under
such Change of Control Offer, (2) notice of redemption of all outstanding Notes has been given pursuant to Section 3.07 unless and until there is a default in payment of the applicable redemption price, or (3) in connection
with or in contemplation of any Change of Control, it has made an offer to purchase (an “Alternate Offer”) any and all Notes validly tendered at a cash price equal to or higher than the change of control payment and has purchased
all Notes properly tendered in accordance with the terms of such Alternate Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer or Alternate Offer may be made in advance of a Change of Control, conditioned upon the
consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer or Alternate Offer is made. The settlement date of any such Change of Control Offer or Alternate Offer
made in advance of a Change of Control may be changed to conform to the actual closing date of such Change of Control; provided that such settlement date is not earlier than 10 days nor later than 60 days from the date the Change of Control
Offer notice is sent as described in clause (a) of this Section 4.14.
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(c) If Holders of not less than 90% of the aggregate principal amount of the outstanding
Notes accept a Change of Control Offer or an Alternate Offer and the Issuer (or any third party making such Change of Control Offer or Alternate Offer in lieu of the Issuer as described above) purchase all of the Notes held by such Holders, the
Issuer shall have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer or Alternate Offer, to redeem all of the Notes that remain
outstanding following such purchase at a redemption price equal to 101% of the aggregate principal amount of the Notes redeemed plus accrued and unpaid interest, if any, thereon to the date of redemption, subject to the right of the Holders of
record on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
(d) Other than as specifically provided
in this Section 4.14, any purchase pursuant to this Section 4.14 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06 hereof.
Section 4.15 Limitation on Guarantees of Indebtedness by Restricted Subsidiaries.
The Company shall not permit any of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries (and
non-Wholly-Owned Subsidiaries that are Restricted Subsidiaries if such non-Wholly-Owned Subsidiaries guarantee the Senior Credit Facilities), other than a Guarantor or a
Foreign Subsidiary, to guarantee the payment of, prior to a Covenant Termination Event, any Indebtedness unless:
(1) such
Restricted Subsidiary within 30 days executes and delivers a supplemental indenture to this Indenture, the form of which is attached as Exhibit D hereto, providing for a Guarantee by such Restricted Subsidiary, except that prior to a
Covenant Termination Event with respect to a guarantee of Indebtedness of the Company or any Guarantor:
(a) if the Notes
or such Guarantor’s Guarantee are subordinated in right of payment to such Indebtedness, the Guarantee under the supplemental indenture shall be subordinated to such Restricted Subsidiary’s guarantee with respect to such Indebtedness
substantially to the same extent as the Notes are subordinated to such Indebtedness; and
(b) if such Indebtedness is by
its express terms subordinated in right of payment to the Notes or such Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Guarantee
substantially to the same extent as such Indebtedness is subordinated to the Notes; and
(2) such Restricted Subsidiary
waives and shall not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a result of any payment by
such Restricted Subsidiary under its Guarantee;
provided that this Section 4.15 shall not be applicable to any guarantee of any
Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary.
Section 4.16 Discharge and Termination of Covenants.
(a) If after the Issue Date (i) the Notes have Investment Grade Ratings from both Rating Agencies and (ii) no Default has occurred
and is continuing under this Indenture (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “Covenant Termination Event”) then, beginning on that day and continuing
at all times thereafter regardless of any subsequent changes in the rating of the Notes, Section 4.07 hereof, Section 4.08 hereof, Section 4.09 hereof, Section 4.10 hereof, Section 4.11
hereof, and clause (4) of Section 5.01(a) hereof shall no longer be applicable to the Notes (collectively, the “Terminated Covenants”).
(b) [Reserved]
(c)
Notwithstanding the foregoing, after a Covenant Termination Event to the extent a Permitted Lien refers to one or more Terminated Covenants, such covenant or definition will be interpreted as though such applicable Terminated Covenant(s) continued
to be applicable following the Covenant Termination Event (but solely for purposes of Section 4.12 and the “Permitted Liens” definition).
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(d) The Issuer shall deliver promptly to the Trustee an Officer’s Certificate
notifying it of any such occurrence under this Section 4.16. The Trustee shall have no obligation to monitor or notify the Holders thereof.
Section 4.17 [Reserved].
Section 4.18 [Reserved].
Section 4.19 Future Guarantees.
If
any Wholly-Owned Subsidiary that is a Restricted Subsidiary guarantees Indebtedness, or any non-Wholly-Owned Subsidiary that is a Restricted Subsidiary guarantees the Senior Credit Facilities, other than a
Guarantor or a Foreign Subsidiary, then such Restricted Subsidiary (a “New Guarantor”) must become a Guarantor and execute and deliver to the Trustee a supplemental indenture substantially in the form of
Exhibit D within 30 calendar days of the date on which it became a guarantor of such Indebtedness or Senior Credit Facility; provided that, all Subsidiaries that have properly been designated as Unrestricted
Subsidiaries under this Indenture shall not be required to comply with this Section 4.19.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger,
Consolidation or Sale of All or Substantially All Assets.
(a) The Company shall not consolidate or merge with or into or wind
up into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) either (x) the Company is the surviving entity or (y) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the jurisdiction of organization of the Company or the
laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, as the case may be, being herein called the “Successor Company”), provided that in the case where the surviving
Person is not a corporation, a co-obligor of the Notes is a corporation;
(2) the
Successor Company, if other than the Company, expressly assumes all the obligations of the Company under the Notes pursuant to supplemental indentures in the form attached to this Indenture;
(3) immediately after such transaction, no Payment Default or Event of Default exists;
(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such
transactions had occurred at the beginning of the applicable four-quarter period,
(i) the Company or the Successor
Company, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness under Section 4.09(a) hereof, or
(ii) the Fixed Charge Coverage Ratio for the Company (or, if applicable, the Successor Company) and its Restricted
Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction;
(5) [Reserved];
(6) [Reserved];
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(7) each Guarantor, unless it is the other party to the transactions
described above, in which case Section 5.01(c)(1)(b) hereof shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(8) the Company (or, if applicable, the Successor Company) shall have delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1) any Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the
Company, and
(c) the Company may merge with an Affiliate of the Company, as the case may be, solely for the purpose of incorporating or
reincorporating the Company in any state of the United States, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
(d) Subject to Section 10.06 of this Indenture, no Restricted Subsidiary that is a Guarantor (a “Restricted Subsidiary
Guarantor”) shall, and the Company shall not permit any such Restricted Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether or not the Restricted Subsidiary Guarantor is the surviving Person), or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) such Restricted Subsidiary Guarantor is the surviving entity or the Person formed by or surviving any such consolidation or
merger (if other than such Restricted Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company or
trust organized or existing under the laws of the jurisdiction of organization of such Restricted Subsidiary Guarantor, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such
Restricted Subsidiary Guarantor or such Person, as the case may be, being herein called the “Successor Person”);
(a) the Successor Person, if other than such Restricted Subsidiary Guarantor, expressly assumes all the obligations of such
Restricted Subsidiary Guarantor under this Indenture and such Restricted Subsidiary Guarantor’s related Guarantee pursuant to supplemental indentures or in the form attached to this Indenture;
(b) immediately after such transaction, no Payment Default or Event of Default exists; and
(c) the Company shall have delivered to the Trustee an Officer’s Certificate stating that such consolidation, merger or
transfer and such supplemental indentures, if any, comply with this Indenture; or
(2) other than after a Covenant
Termination Event, the transaction is made in compliance with Section 4.10 hereof.
Subject to Section 5.01(c) of this Indenture,
the Successor Person shall succeed to, and be substituted for, such Restricted Subsidiary Guarantor under this Indenture and such Restricted Subsidiary Guarantor’s Guarantee. Notwithstanding the foregoing, any such Restricted Subsidiary
Guarantor may (i) merge into or transfer all or part of its properties and assets to another Restricted Subsidiary Guarantor or the Issuer, (ii) merge with an Affiliate of the Company solely for the purpose of incorporating,
reincorporating or reorganizing the Restricted Subsidiary Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not
increased thereby, or (iii) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of such Restricted Subsidiary Guarantor;
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(a) Holdings may not consolidate or merge with or into or wind up into
(whether or not Holdings is the surviving person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1)
Holdings is the surviving entity or the Person formed by or surviving any such consolidation or merger or to
which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of
organization of Holdings, as the case may be, or the laws of the United States, any state thereof, or the District of Columbia (such Guarantor or such Person, as the case may be, being herein called the “Successor Holdings”);
(2)
the Successor Holdings expressly assumes all the obligations of such Guarantor under the Indenture and
Holdings’ related Guarantee pursuant to supplemental indentures or in the form attached to this Indenture; and
(3)
the Company shall have delivered to the Trustee an Officer’s Certificate stating that such consolidation,
merger or transfer and such supplemental indentures, if any, comply with this Indenture.
Subject to certain limitations
described in the Indenture, the Successor Holdings Person will succeed to, and be substituted for, Holdings under the Indenture and such Guarantor’s Guarantee. Notwithstanding the foregoing, any such Guarantor may (i) merge with an
Affiliate of the Company solely for the purpose of incorporating or reincorporating Holdings in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Issuer and its
Restricted Subsidiaries is not increased thereby, or (ii) convert into a corporation, partnership, limited partnership, limited liability corporation or trust organization or existing under the laws of the jurisdiction of organization of such
Guarantor.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the
assets of the Issuer in accordance with Section 5.01 hereof, the successor corporation formed by such consolidation or into or with which the Issuer is merged or to which such sale, assignment, transfer, lease, conveyance
or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the Issuer shall refer
instead to the successor corporation and not to the Issuer), and may exercise every right and power of the Issuer under this Indenture with the same effect as if such successor Person had been named as the Issuer herein; provided that any
predecessor Issuer shall not be relieved from the obligation to pay the principal of and interest on the Notes except in the case of a sale, assignment, transfer, conveyance or other disposition of all of an Issuer’s assets that meets the
requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01
Events of Default.
(a) Each of the following is an “Event of Default”:
(1) default in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any,
on the Notes;
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(2) default for 30 days or more in the payment when due of interest on or
with respect to the Notes;
(3) failure by the Issuer or any Restricted Subsidiary for 30 days after receipt of written
notice given by the Trustee or the Holders of not less than 30% in principal amount of outstanding Notes to comply with the provisions described in Section 4.10 or Section 4.14;
(4) failure by the Issuer or any Guarantor for 120 days after receipt of written notice given by the Trustee or the Holders of
not less than 30% in principal amount of outstanding Notes to comply with the provisions in Section 4.03;
(5)
failure by the Issuer or any Guarantor for 60 days after receipt of written notice given by the Trustee or the Holders of not less than 30% in principal amount of the outstanding Notes to comply with any of its obligations, covenants or agreements
(other than an Event of Default referred to in clauses (1) through (4) above) contained in this Indenture or the Notes;
(6) default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries, other than Indebtedness owed to the Company or a Restricted
Subsidiary, whether such Indebtedness or guarantee now exists or is created after the issuance of the Notes, if both:
(a)
such default either results from the failure to pay any principal of such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or relates to an obligation other than the obligation to pay principal of any
such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity; and
(b) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for
failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate $150.0 million at any one time outstanding;
provided, however, that if, prior to any acceleration of the Notes, (i) any such payment default is cured or waived,
(ii) any such acceleration is rescinded, or (iii) such Indebtedness is repaid during the 30 Business Day period commencing upon the end of any applicable grace period for such payment default or the occurrence of such acceleration, as the
case may be, any Default or Event of Default (but not any acceleration of the Notes) caused by such payment default or acceleration shall be automatically rescinded, so long as such rescission does not conflict with any judgment, decree or
applicable law;
(7) failure by the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that
together would constitute a Significant Subsidiary) to pay final judgments aggregating in excess of $150.0 million (other than any judgments covered by indemnities from indemnitors with corporate Investment Grade Ratings or covered, directly or
indirectly, by insurance policies issued by reputable and creditworthy insurance companies as determined in good faith by the Company, in each case so long as such indemnitor or insurance company has been provided notice of the judgment and has not
in writing disputed responsibility therefor or disclaimed coverage) which judgments are not paid, discharged or stayed for a period of more than 60 days after such judgments have become final and, in the event such judgment is covered by insurance,
an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed;
(8) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries
that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
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(i) commences proceedings to be adjudicated bankrupt or insolvent;
(ii) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under applicable Bankruptcy law;
(iii) consents to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially all of its property; or
(iv) makes a general assignment for the benefit of its creditors;
(9) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against an Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary, in a proceeding in which the Issuer or any such
Restricted Subsidiaries, that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;
(ii) appoints a receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a
Significant Subsidiary, or for all or substantially all of the property of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the latest audited
consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group
of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days; or
(10) the Guarantee of any Significant Subsidiary shall for any reason cease to be in full force and effect or be declared null
and void or any responsible officer of any Guarantor that is a Significant Subsidiary, as the case may be, denies that it has any further liability under its Guarantee or gives notice to such effect, other than by reason of the termination of this
Indenture or the release of any such Guarantee in accordance with this Indenture.
(b) In the event of any Event of Default specified in
clause (6) of Section 6.01(a) hereof, such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded,
automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose:
(1) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged; or
(2) holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event
of Default; or
(3) the default that is the basis for such Event of Default has been cured.
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Section 6.02 Acceleration.
If any Event of Default (other than an Event of Default specified in clause (8) or (9) of Section 6.01(a)
hereof) occurs and is continuing under this Indenture, the Trustee or the Holders of at least 30% in principal amount of the then total outstanding Notes (with a copy to the Trustee if notice is given by the Holders) may by notice declare the
principal, premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately. Upon the effectiveness of such declaration, such principal and interest shall be due and payable
immediately. The Trustee shall have no obligation to accelerate the Notes if and so long as a Responsible Officer in good faith (acting upon advice of agents or counsel, as it deems necessary) determines acceleration is not in the interest of the
Holders of the Notes.
Notwithstanding the foregoing, in the case of an Event of Default arising under clause (8) or (9) of
Section 6.01(a) hereof, all outstanding Notes shall be due and payable immediately without further action or notice.
The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee (with a copy to the
Paying Agent) may on behalf of all of the Holders rescind any acceleration and its consequences, provided such rescission would not conflict with any judgment or decree of a court of competent jurisdiction (except continuing nonpayment of
interest on, premium, if any, or the principal of any Note held by a non-consenting Holder).
Section 6.03
Other Remedies.
If an Event of Default occurs and is continuing, the Trustee and any Agent may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default and its consequences hereunder, except a continuing Default in the payment of the principal of, premium, if any, or interest on, any Note held by a
non-consenting Holder (including in connection with an Asset Sale Offer or a Change of Control Offer); provided, subject to Section 6.02 hereof, that the Holders of a majority
in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration; provided further such rescission would not
conflict with any judgment of a court of competent jurisdiction. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Noteholder Direction.
Any notice of Default, notice of acceleration or instruction to a Responsible Officer of the Trustee to provide a notice of Default, notice of
Event of Default, notice of acceleration or take any other action (a “Noteholder Direction”) provided by any one or more Holders (other than a Regulated Bank, an Initial Purchaser or its Affiliate) (in each case, as evidenced by
delivery of an officer’s certificate to the Trustee from such Regulated Bank, Initial Purchaser or Affiliate certifying as to its status as a Regulated Bank, an Initial Purchaser or Affiliate thereof) (each, a “Directing
Holder”) must be accompanied by a written representation from each such Holder to the Issuer and a responsible officer of the Trustee that such Holder is not (or, in the case such Holder is the depositary or its nominee, that such Holder
is being instructed solely by beneficial owners that are not) Net Short (a “Position Representation”), which representation, in the case of a Noteholder Direction relating to a notice of Default or Event of Default shall be deemed
repeated at all times until the resulting Event of Default is cured or otherwise ceases to exist or the Notes are
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accelerated. In addition, each Directing Holder must, at the time of providing a Noteholder Direction, covenant to provide the Issuer with such information as the Issuer may reasonably request
from time to time in order to verify the accuracy of such Holder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder is the depositary or its
nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of the depositary or its nominee and the depositary shall be entitled to conclusively rely on such
Position Representation and Verification Covenant in delivering any direction to the Trustee.
If, following delivery of a Noteholder
Direction, but prior to acceleration of the Notes, the Issuer determine in good faith that there is a reasonable basis to believe a Directing Holder was, at any relevant time, in breach of its Position Representation and provides to the Trustee an
Officer’s Certificate stating that the Issuer has initiated litigation (“Litigation”) in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position
Representation, and seeking to invalidate any Default, Event of Default or acceleration (or notice thereof) that resulted from the applicable Noteholder Direction, the cure period with respect to any Default or such Event of Default shall be
automatically stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter (a “Final Decision”). Once such Officer’s Certificate has been
provided to the Trustee, the Trustee shall take no further action pursuant to the related Noteholder Direction until it has actual knowledge of a Final Decision. If, following the delivery of a Noteholder Direction, but prior to acceleration of the
Notes, the Issuer provides to the Trustee an Officer’s Certificate stating that a Directing Holder failed to satisfy its Verification Covenant (a “Verification Covenant Officer’s Certificate”), the cure period with
respect to any Default or Event of Default that resulted from the applicable Noteholder Direction shall be automatically stayed pending satisfaction of such Verification Covenant and the Trustee shall take no further action pursuant to the related
Noteholder Direction until the Issuer provides a subsequent Officer’s Certificate to the Trustee that such Verification Covenant has been satisfied (a “Covenant Satisfaction Officer’s Certificate”). The Issuer shall
promptly deliver a Covenant Satisfaction Officer’s Certificate following satisfaction by the applicable Directing Holder of its Verification Covenant. Any breach of the Position Representation shall result in such Holder’s participation
in such Noteholder Direction being disregarded; and, if, without the participation of such Holder, the percentage of Notes held by the remaining Holders that provided such Noteholder Direction would have been insufficient to validly provide such
Noteholder Direction, such Noteholder Direction shall be void ab initio, with the effect that such Default, Event of Default or acceleration (or notice thereof) shall be deemed never to have occurred and the Trustee shall be deemed not to have
received such Noteholder Direction or any notice of such Default or Event of Default.
Notwithstanding anything in the preceding two
paragraphs to the contrary, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default as the result of a bankruptcy or similar proceeding shall not require compliance with the foregoing paragraphs. In addition, for
the avoidance of doubt, the foregoing paragraphs shall not apply to any Holder that is a Regulated Bank, an Initial Purchaser or its Affiliate (in each case, as evidenced by delivery of an officer’s certificate to the Trustee from such Initial
Purchaser or Affiliate certifying as to its status as an Initial Purchaser or Affiliate thereof).
For the avoidance of doubt, the Trustee
shall be entitled to conclusively rely on any Noteholder Direction delivered to it in accordance with this Indenture, shall have no duty to inquire as to or investigate the accuracy of any Position Representation, enforce compliance with any
Verification Covenant, verify any statements in any Officer’s Certificate delivered to it, or otherwise make calculations, investigations or determinations with respect to Derivative Instruments, Net Shorts, Long Derivative Instruments, Short
Derivative Instruments or otherwise and shall have no liability for ceasing to take any action, staying any remedy or otherwise failing to act in accordance with a Noteholder Direction during the pendency of Litigation or a Noteholder Direction
after a Verification Covenant Officer’s Certificate has been provided to it by prior to receipt of a Covenant Satisfaction Officer’s Certificate. With their acquisition of any Notes, each Holder and subsequent purchaser of the Notes
consents to the delivery of its Position Representation by the Trustee to the Issuer in accordance with the terms of this section. The Trustee shall have no liability or responsibility to the Issuer, any Holder or any other Person in connection with
any Noteholder Direction or to determine whether or not any Holder has delivered a Position Representation or that such Position Representation conforms with this Indenture or any other agreement.
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Section 6.06 Control by Majority.
Holders of a majority in principal amount of the then total outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines is
unduly prejudicial to the rights of any other Holder of a Note or, subject to Sections 7.01 and 7.02, that would involve the Trustee in personal liability; provided that the Trustee shall not have an affirmative obligation to
determine whether any such direction is unduly prejudicial to any other Holder.
Section 6.07 Limitation on Suits.
Subject to Section 6.08 hereof, no Holder of a Note may pursue any remedy with respect to this Indenture or the
Notes unless:
(1) such Holder has previously given the Trustee (with a copy to the Paying Agent) written notice that an
Event of Default is continuing;
(2) Holders of at least 30% in principal amount of the total outstanding Notes have
requested the Trustee to pursue the remedy;
(3) Holders of the Notes have offered and, if requested, provided the Trustee
security or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee has not complied
with such request within 60 days after the receipt thereof and the offer of security or indemnity; and
(5) Holders of a
majority in principal amount of the total outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 6.08 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and
interest on the Note, on or after the respective due dates expressed in the Note (including in connection with an Asset Sale Offer or a Change of Control Offer), or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
Section 6.09 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and,
to the extent lawful, interest and such further amount as provided in Section 7.07.
Section 6.10 Restoration of Rights
and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Issuer, the Trustee and the
Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.
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Section 6.11 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in
Section 2.07 hereof, no right or remedy herein conferred upon or reserved to the Trustee, to the Agents or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.12 Delay or Omission Not
Waiver.
No delay or omission of the Trustee, any Agent or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee, to any Agent or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.13
Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Issuer (or any other obligor upon the Notes including the Guarantors), its creditors or its property and shall be entitled and empowered to participate as a member in any official committee of creditors appointed
in such matter and to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee,
and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee and the Agents any amount due to them for the reasonable compensation, expenses, disbursements and advances of the Trustee,
the Agents and their respective agents and counsel, and any other amounts due the Trustee and the Agents under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, the Agents and their respective agents and counsel, and any other amounts due the Trustee and the Agents under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation
or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.14 Priorities.
If
the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:
(1) to the Trustee, each Agent and their respective agents and attorneys for amounts due under Section 7.07 hereof;
(2) to Holders of Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
(3) to the Issuer or to such party as a court of competent jurisdiction shall direct, including a Guarantor, if applicable.
The Trustee or such Agent may fix a record date and payment date for any payment to Holders of Notes pursuant to this
Section 6.14.
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Section 6.15 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.15 does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform on their face to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own grossly negligent action, its own grossly negligent failure to act, or its
own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved in a court of competent jurisdiction in a final ruling from which no appeal may be taken that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.06 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of any
of the Holders of the Notes unless the Holders have offered and, if requested, provided to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.
Unless otherwise agreed in writing with the Issuer, money held in trust by the Trustee shall be held uninvested and need not be segregated from other funds except to the extent required by law.
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Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence
of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise
specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
(f) None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any liability,
financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such
risk or liability is not assured to it.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Notes and this Indenture. Delivery of reports to the Trustee or any Agent pursuant to Section 4.03 hereof shall not constitute actual or constructive knowledge of, or notice to, the Trustee or such Agent of the information
contained therein. The Trustee shall have no duty to review or analyze reports delivered to it. The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s compliance with the covenants or with
respect to any reports or other documents filed with any website under this Indenture, or participate in any conference calls.
(h) In no
event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent, Custodian and other Person employed to act hereunder.
(j) The Trustee and any Agent may request that the Company and any Guarantor deliver an Officer’s Certificate setting forth the
names of individuals and/or titles of officers (with specimen signatures) authorized at such times to take specific actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person specified as so authorized in any
such certificate previously delivered and not superseded.
(k) The permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and, with respect to such permissive rights, the Trustee shall not be answerable for other than its gross negligence or willful misconduct.
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Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any
Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue
as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee to enter into a joinder to the
PHR Intermediation Agreement, pursuant to which the Trustee will agree to be bound by the terms thereof and acknowledge that the Holders of the Notes have no right, title or interest in, or any lien upon, any of the collateral described therein.
Section 7.04 Trustee’s Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall
not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this
Indenture.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
of Notes a notice of the Default within 90 days after it occurs. Except in the case of a Default relating to the payment of principal, premium, if any, or interest on any Note, the Trustee may withhold from the Holders notice of any continuing
Default if and so long as a Responsible Officer in good faith (acting on advice of agents or counsel as it deems necessary) determines that withholding the notice is in the interests of the Holders of the Notes. The Trustee shall not be deemed to
know of any Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is such a Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the
Trustee.
Section 7.06 [Reserved].
Section 7.07 Compensation and Indemnity.
The Issuer shall pay to the Trustee and each Agent from time to time such compensation for its acceptance of this Indenture and services
hereunder as the parties shall agree in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee and each Agent promptly upon
request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of one counsel representing
the Trustee (which counsel, for the avoidance of doubt, shall solely represent the Trustee and no other parties hereunder) and one counsel to the other Indemnified Person(s).
The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee, each Agent and their respective officers, directors,
employees, representatives and agents (each an “Indemnified Person”), for, and hold such Indemnified Person harmless against, any and all loss, damage, liability or expense (including, without limitation, losses, damages,
liabilities and expenses under environmental laws, as well as reasonable attorneys’ fees and expenses) incurred by such Indemnified Person in connection with the acceptance or administration of this trust and the performance of its duties
hereunder (including the costs and expenses of enforcing this Indenture against the Issuer or any of the Guarantors (including this Section 7.07) or defending itself against any claim whether asserted by any Holder, the
Issuer or any Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder). Each Indemnified Person shall notify the Issuer promptly of any claim for which it may seek indemnity.
Failure by an Indemnified Person to so notify the Issuer shall not relieve the Issuer of their
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obligations hereunder. The Issuer shall defend the claim and the Indemnified Persons may have one separate counsel representing the Trustee (which counsel, for the avoidance of doubt, shall
solely represent the Trustee and no other parties hereunder) and one separate counsel representing the other Indemnified Person(s) and the Issuer shall pay the fees and expenses of each such counsel. The Issuer need not reimburse any expense or
indemnify against any loss, damage, liability or expense incurred by an Indemnified Person attributable to such Indemnified Person’s own willful misconduct or gross negligence as determined by a court of competent jurisdiction in a final
ruling from which no appeal may be taken.
The obligations of the Issuer under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee and any Agent.
Notwithstanding
anything to the contrary in Section 4.12 hereof, to secure the payment obligations of the Issuer and the Guarantors in this Section 7.07, the Trustee and each Agent shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee or such Agent, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee or any Agent incurs expenses or renders services after an Event of Default specified in
Section 6.01(a)(8) or (9) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08. The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. Each Agent may resign by giving 30 days
prior written notice of such resignation to the Issuer. If an Agent resigns, the Issuer shall promptly appoint a successor Agent. The Issuer’s and the Guarantors’ obligations under Section 7.07 hereof shall
continue for the benefit of the resigning Agent. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) (c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the
Issuer’s expense), the Issuer or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with
Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s and the Guarantors’ obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
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Section 7.09 Successor Trustee by Merger, Etc.. If the Trustee consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition.
Section 7.11 [Reserved].
Section 7.12 No Bonds Required.
Neither the Trustee nor any Agent shall be required to post a bond or similar security in respect of the performance of its power and duties
hereunder.
Section 7.13 Special, Punitive, Indirect or Consequential Damages.
In no event shall the Trustee or any Agent be responsible or liable for special, punitive, indirect, or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee or such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Section 7.14 Patriot Act.
In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions,
including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable Law”), the Trustee and Agents are
required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee and Agents. Accordingly, each of the parties agree to provide to the Trustee and Agents,
upon their request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee and Agents to comply with Applicable Law.
ARTICLE 8
LEGAL DEFEASANCE AND
COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at their option and at any time, elect to have either Section 8.02 or 8.03 hereof applied to
all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.
Section 8.02 Legal Defeasance and
Discharge.
Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.02, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with
respect to all outstanding Notes and Guarantees on the date the conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred
to in (a) and (b) below, and to have satisfied all their other obligations under such Notes and this Indenture including that of the Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute such instruments
delivered to it and reasonably acceptable to it acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
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(a) the rights of Holders of Notes to receive payments in respect of the principal of,
premium, if any, and interest on the Notes when such payments are due solely out of the trust created pursuant to this Indenture referred to in Section 8.04 hereof;
(b) the Issuer’s obligations with respect to Notes concerning issuing temporary Notes, registration of such Notes, mutilated, destroyed,
lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(c) the
rights, powers, trusts, duties and immunities of the Trustee and each Agent, and the Issuer’s obligations in connection therewith;
(d) this Section 8.02; and
(e) the optional redemption provisions of this Indenture to the extent that Legal Defeasance is to be effected together with a redemption.
Subject to compliance with this Article VIII, the Issuer may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant
Defeasance.
Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.03, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from their obligations under the covenants contained in Sections
4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.19 hereof and clause (4) of
Section 5.01(a), Sections 5.01(c) and 5.01(d) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied
(“Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(a)(3), 6.01(a)(4),
6.01(a)(5), 6.01(a)(6), 6.01(a)(7), 6.01(a)(8) (solely with respect to Restricted Subsidiaries that are Significant Subsidiaries), 6.01(a)(9) (solely with respect to Restricted Subsidiaries that are Significant
Subsidiaries), and 6.01(a)(10) hereof shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the
outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:
(1) the Issuer must irrevocably deposit with the Paying Agent, in trust, for the benefit of the Holders of the Notes, cash in
U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest due
on the Notes on the stated maturity date or on the redemption date, as the case may be, of such principal, premium, if any, or interest on such Notes and the Issuer must specify whether such Notes are being defeased to maturity or to a particular
redemption date;
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(2) in the case of Legal Defeasance, the Issuer shall have delivered to the
Trustee (with a copy to the Paying Agent) an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Issuer has received from, or there has been published by, the United States
Internal Revenue Service a ruling, or since the issuance of the Notes, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that,
subject to customary assumptions and exclusions, the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Legal Defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee (with a copy to the Paying Agent) an
Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such
Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Payment Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit
required to effect such Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) shall have occurred and be continuing on the
date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or
constitute a default under the Senior Credit Facilities or any other material agreement or instrument (other than this Indenture) to which, any of the Issuer or any Guarantor is a party or by which any of the Issuer or any Guarantor is bound (other
than that resulting, with respect to any Indebtedness being defeased, from any borrowing of funds to be applied to make the deposit required to effect such Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit relating to
such Indebtedness, and the granting of Liens in connection therewith);
(6) the Issuer shall have delivered to the Trustee
(with a copy to the Paying Agent) an Opinion of Counsel to the effect that, as of the date of such opinion and subject to customary assumptions and exclusions, including, that no intervening bankruptcy of the Issuer between the date of deposit and
the 91st day following the deposit and assuming that no holder is an “insider” of the Issuer under the applicable bankruptcy law, after the 91st day following the deposit, the trust funds will not be subject to the effect of
Section 547 of Title 11 of the United States Code;
(7) the Issuer shall have delivered to the Trustee (with a copy to
the Paying Agent) an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Guarantor or others; and
(8) the Issuer shall have delivered to the Trustee (with a copy to the Paying Agent) an Officer’s Certificate and an
Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have
been complied with.
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds thereof) deposited with
the Paying Agent pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Paying Agent, in accordance with the provisions of such Notes and this Indenture, to the payment
to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
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The Issuer shall pay and indemnify the Trustee and each Agent against any tax, fee or other
charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the
Paying Agent shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money or Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Paying Agent (which may be the opinion delivered under Section 8.04(2)(a) hereof), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to
Issuer.
Subject to applicable law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in
trust for the payment of the principal of, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Issuer on their request
or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuer as trustee thereof, shall thereupon cease.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or Government Securities in accordance with
Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s
obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided that, if the Issuer makes any payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT
AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 hereof, the Issuer, any Guarantor (with respect to a Guarantee or this Indenture), the
Agents and the Trustee, as applicable, may amend or supplement this Indenture and any Guarantee or Notes without the consent of any Holder:
(a) to cure any ambiguity, omission, mistake, defect or inconsistency; provided such cure does not adversely affect any Holder;
(b) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(c) to comply with Section 5.01 hereof;
(d) to provide for the assumption of the Issuer’s or any Guarantor’s obligations to the Holders;
(e) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights
under this Indenture of any such Holder taken as a whole in any material respect;
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(f) to add covenants for the benefit of the Holders or to surrender any right or power
conferred upon the Issuer or any Guarantor;
(g) to comply with requirements of the SEC in order to effect or maintain the qualification
of this Indenture under the Trust Indenture Act;
(h) to evidence and provide for the acceptance and appointment under this Indenture of a
successor Trustee thereunder pursuant to the requirements thereof;
(i) to add a Guarantor under this Indenture;
(j) to mortgage, pledge, hypothecate or grant any Lien for the benefit of the Holders of the Notes, as security for the payment and
performance of all or any portion of the Obligations under the Notes, in any property or assets;
(k) to release a Guarantor from its
Guarantee when permitted or required by this Indenture;
(l) to conform the text of this Indenture, the Guarantees or the Notes to any
provision of the “Description of Notes” section of the Offering Memorandum to the extent that such provision in such “Description of Notes” section was intended to be a verbatim recitation of a provision of this Indenture,
the Guarantees or the Notes as evidenced and provided in an Officer’s Certificate;
(m) to provide for Additional Notes in
accordance with the limitations set forth in this Indenture; or
(n) to make any amendment to the provisions of this Indenture relating to
the transfer and legending of Notes as permitted by this Indenture, including, without limitation to facilitate the issuance and administration of the Notes; provided, however, that (i) compliance with this Indenture as so amended
would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (ii) such amendment does not materially and adversely affect the rights of Holders to transfer Notes.
Upon the request of the Issuer accompanied by a resolution of their respective boards of directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 13.04 hereof, the Trustee and the Agents shall join with the Issuer and the Guarantors in the execution of any amended
or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but neither the Trustee nor any Agent shall be obligated to enter into
such amended or supplemental indenture that affects its own rights, duties, liabilities or immunities under this Indenture or otherwise. Notwithstanding the foregoing, no Opinion of Counsel or Officer’s Certificate shall be required in
connection with the addition of a New Guarantor pursuant to Section 4.19 upon the delivery by such Guarantor to the Trustee and Registrar of a supplemental indenture to this Indenture, the form of which is attached as
Exhibit D hereto.
Section 9.02 With Consent of Holders of Notes.
Except as provided in Section 9.01 or below in this Section 9.02, the Issuer, the
Guarantors, the Trustee and the Agents, as applicable, may amend or supplement this Indenture, the Notes and the Guarantees with the consent of the Holders of at least a majority in principal amount of the Notes (including Additional Notes, if any)
then outstanding voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Indenture, the Guarantees or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including Additional Notes, if any) voting as a single class
(including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof and Section 2.09 hereof shall determine which Notes are
considered to be “outstanding” for the purposes of this Section 9.02.
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Upon the request of the Issuer accompanied by a resolution of their respective boards of
directors authorizing the execution of any such amended or supplemental indenture or waiver, and upon the filing with the Trustee and the Agents of evidence of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the
documents described in Section 13.04 hereof, the Trustee and any Agent shall join with the Issuer in the execution of such amended or supplemental indenture or waiver unless such amended or supplemental indenture or waiver
adversely affects the Trustee’s or such Agent’s own rights, duties, liabilities or immunities under this Indenture or otherwise, in which case the Trustee or such Agent may in its discretion, but shall not be obligated to, enter into
such amended or supplemental indenture or waiver.
It shall not be necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall mail to the
Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended
or supplemental indenture or waiver.
Without the consent of each affected Holder of Notes, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of such Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed final maturity of any such Note or alter or waive the provisions with respect
to the redemption of such Notes (other than provisions relating to Section 3.10, Section 4.10 and Section 4.14 hereof to the extent that any such amendment or waiver does not have the effect of reducing the
principal of or changing the fixed final maturity of any such Note or altering or waiving the provisions with respect to the redemption of such Notes);
(3) reduce the rate of or change the time for payment of interest on any Note;
(4) waive a Default in the payment of principal of or premium, if any, or interest on the Notes, except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration, or in respect of a covenant or provision contained in this Indenture
or any Guarantee which cannot be amended or modified without the consent of all Holders;
(5) make any Note payable in
money other than that stated therein;
(6) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders to receive payments of principal of or premium, if any, or interest on the Notes;
(7)
make any change in these amendment and waiver provisions;
(8) impair the right of any Holder to receive payment of
principal of, or interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;
(9) make any change to or modify the ranking of the Notes that would adversely affect the Holders; or
(10) except as expressly permitted by this Indenture, modify the Guarantees of any Significant Subsidiary in any manner adverse
to the Holders of the Notes.
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Section 9.03 [Reserved].
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee or an Agent receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder; provided that any amendment or waiver that requires the consent of each affected Holder of a Note shall not become effective with respect to any
non-consenting Holder pursuant to the penultimate paragraph in Section 9.02 hereof.
The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only such Persons, shall be entitled to consent to
such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date
unless the consent of the requisite number of Holders has been obtained.
Section 9.05 Notation on or Exchange of Notes.
The Registrar may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in
exchange for all Notes may issue and the Authenticating Agent shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, Etc.. The Trustee and each Agent shall sign any amendment, supplement or waiver authorized
pursuant to this Article IX if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee or such Agent. The Issuer may not sign an amendment, supplement or waiver until the board of
directors approves it. In executing any amendment, supplement or waiver, the Trustee and each Agent shall receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon, in addition to the documents required by
Section 13.04 hereof, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture or waiver is authorized or permitted by this Indenture and that such amendment,
supplement or waiver is the legal, valid and binding obligation of the Issuer and any Guarantors party thereto, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof
(including Section 9.03). Notwithstanding the foregoing, no Opinion of Counsel will be required for the Trustee or any Agent to execute any supplemental indenture adding a New Guarantor pursuant to Section 4.19.
Section 9.07 Payment for Consent.
Neither the Issuer nor any Affiliate of the Issuer shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to all Holders from whom such consent, waiver
or agreement to amend is sought and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in solicitation documents relating to such consent, waiver or agreement.
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ARTICLE 10
GUARANTEES
Section 10.01
Guarantee.
Subject to this Article X, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to
each Holder of a Note authenticated and delivered by the Authenticating Agent and to the Trustee, each Agent and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations
of the Issuer hereunder or thereunder, that: (a) the principal of, interest, premium, if any, on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee or the Agents hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree
that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each
Guarantor hereby waives, to the extent permitted by law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer,
protest, notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
Each Guarantor also agrees to pay any and all reasonable and documented
out-of-pocket costs and expenses (including reasonable attorneys’ fees of one counsel) incurred by the Trustee, any Agent or any Holder in enforcing any rights
under this Section 10.01.
If any Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid either to the Trustee, any Agent or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article VI hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as
the exercise of such right does not impair the rights of the Holders under the Guarantees.
Each Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligees on the Notes or Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as
though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
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In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The Guarantee
issued by any Guarantor shall be an unsecured senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Senior Indebtedness of such Guarantor, if any.
Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off,
counterclaim, reduction or diminution of any kind or nature.
Section 10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Guarantee. To effectuate the foregoing intention, the Trustee, the Agents, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such
maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this Article X, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each
Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro
rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
Section 10.03 Execution and Delivery.
To evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that this Indenture shall
be executed on behalf of such Guarantor by an Officer of such Guarantor.
Each Guarantor hereby agrees that its Guarantee set forth in
Section 10.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
If an Officer whose signature is on this Indenture no longer holds that office at the time the Authenticating Agent authenticates the Note,
the Guarantee shall be valid nevertheless.
The delivery of any Note by the Authenticating Agent, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.
If required by
Section 4.15 hereof, the Issuer shall cause any newly created or acquired Restricted Subsidiary to comply with the provisions of Section 4.15 hereof and this Article X, to the extent applicable.
Section 10.04 Subrogation.
Each Guarantor shall be subrogated to all rights of Holders of Notes against the Issuer in respect of any amounts paid by any Guarantor
pursuant to the provisions of Section 10.01 hereof; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based
upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.
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Section 10.05 Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture
and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.
Section 10.06
Release of Guarantees.
A Guarantee by a Restricted Subsidiary that is a Guarantor shall be automatically and
unconditionally released and discharged, and no further action by such Guarantor, the Issuer, the Agents or the Trustee is required for the release of such Guarantor’s Guarantee, upon:
(i) i. any sale, exchange or transfer (by merger or otherwise) of (i) the Capital Stock of such Guarantor, after which the
applicable Guarantor is no longer a Restricted Subsidiary or (ii) all or substantially all the assets of such Guarantor, in each case, to a Person that is not the Issuer or a Guarantor if such sale, exchange or transfer is made in compliance
with the applicable provisions of this Indenture;
(A) the release or discharge of the guarantee by such Guarantor of all
its Indebtedness under the Senior Credit Facilities or such other guarantee that resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such guarantee;
(B) the designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in accordance with the
applicable provisions of this Indenture;
(C) the exercise by the Issuer of their Legal Defeasance option or Covenant
Defeasance option in accordance with Article VIII hereof or the Issuer’s obligations under this Indenture being discharged in accordance with the terms of this Indenture; or
(D) upon the liquidation or dissolution of such Guarantor; provided that no Default or Event of Default has occurred and
is continuing; and
(ii) the Issuer delivering to the Trustee an Officer’s Certificate stating that all conditions
precedent provided for in this Indenture relating to such transaction have been complied with.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01
Satisfaction and Discharge.
This Indenture shall be discharged and shall cease to be of further effect as to all Notes,
when either:
(1) all Notes theretofore authenticated and delivered, except lost, stolen or destroyed Notes which have been
replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, have been delivered to the Registrar for
cancellation; or
(2) (i) all Notes not theretofore delivered to the Registrar for cancellation have become due and payable
by reason of the making of a notice of redemption or otherwise, shall become due and payable within one year or may be called for redemption within one year under arrangements satisfactory to the Registrar for the giving of notice of redemption by
the Registrar in the name, and at the expense, of the Issuer and the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Paying Agent as trust funds in trust solely for the benefit of the Holders of the Notes, cash
in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest to pay and discharge the entire indebtedness on the Notes not theretofore delivered to
the Registrar for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
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(ii) no Payment Default or Event of Default (other than that resulting from
borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) with respect to this Indenture or the Notes shall have
occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under the Senior Credit Facilities or any other material
agreement or instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar
and simultaneous deposit relating to other Indebtedness, and, in each case, the granting of Liens in connection therewith);
(iii) the Issuer has paid or caused to be paid all sums payable by them under this Indenture and not provided for by the
deposit required by clause (2)(ii) above; and
(iv) the Issuer has delivered irrevocable instructions to the Paying Agent
to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.
In addition, the
Issuer must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee (with a copy to the Paying Agent) stating that all conditions precedent to satisfaction and discharge provided for in this Indenture have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Paying Agent pursuant to
clause (2)(A) of this Section 11.01, the provisions of Section 11.02 and Section 8.06 hereof shall survive. The obligations of the Issuer under
Section 7.07 shall survive the satisfaction and discharge of this Indenture.
Section 11.02 Application of Trust
Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Paying Agent
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment as the Paying Agent may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Paying Agent; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with
Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and
any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Issuer has made any
payment of principal of, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government
Securities held by the Trustee or Paying Agent. Nothing herein shall preclude the Company from acting as its own Paying Agent.
ARTICLE 12
[RESERVED]
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ARTICLE 13
MISCELLANEOUS
Section 13.01 Electronic
Signatures.
Unless otherwise provided herein, the words “execute”, “execution”, “signed”,
and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture or any of the transactions contemplated hereby (including amendments, waivers, consents and other
modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a
paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act, and any other similar state laws based on the Uniform Electronic Transactions Act; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any
form or in any format unless expressly agreed to by such Trustee pursuant to procedures approved by the Trustee.
Section 13.02
Notices.
Any notice or communication by the Issuer, any Guarantor or the Trustee to the others is duly given if in writing
and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), fax or overnight air courier guaranteeing next day delivery, to the others’ address:
If to the Issuer and/or any Guarantor:
Par Pacific Holdings, Inc.
825
Town & Country Lane, Suite 1500
Houston, Texas 77024
Attention: Jeffrey R. Hollis; Allison Childs
Email: [***]; [***]
If to the
Trustee, Paying Agent, Registrar or Transfer Agent:
U.S. Bank Trust Company, National Association
1255 Corporate Drive, 6th Floor
Irving, TX 75038
Attention:
Global Corporate Trust – Par Petroleum
Email: [***]
The Issuer, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; when receipt acknowledged, if faxed; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery; provided that any notice or communication delivered to the Trustee or any Agent shall be deemed effective upon actual receipt thereof. Notwithstanding any other provision of this
Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given when delivered to the
Depositary for such Note (or its designee) pursuant to the customary procedures of such Depositary.
If a notice or communication is
mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer
mails a notice or communication to Holders, they shall mail a copy to the Trustee and each Agent at the same time.
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Section 13.03 [Reserved].
Section 13.04 Certificate and Opinion as to Conditions Precedent.
Unless any provision of this Indenture explicitly states otherwise, upon any request or application by the Issuer or any of the Guarantors to
the Trustee or any Agent to take any action under this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee or such Agent, as applicable:
(a) An Officer’s Certificate in form and substance reasonably satisfactory to the Trustee or such Agent, as applicable (which shall
include the statements set forth in Section 13.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied;
and
(b) An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee or such Agent, as applicable (which shall
include the statements set forth in Section 13.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s
Certificate as to matters of fact); and
(d) a statement as to whether or not, in the opinion of such Person, such condition or covenant
has been complied with.
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. Each Agent may make reasonable rules and set reasonable
requirements for its functions.
Section 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
None of the Issuer’s directors, officers, employees, incorporators or stockholders or any of our Restricted Subsidiaries, as such, will
have any liability for any of the Issuer’s obligations under the Notes, the Guarantees, this Indenture or of any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 13.08 Governing Law,
Submission to Jurisdiction.
THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. The parties hereby (i) irrevocably submit to the non-exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, the city of New York,
(ii) waive any objection to laying of venue in any such action or proceeding in such courts, and (iii) waive any objection that such courts are an inconvenient forum or do not have jurisdiction over any party
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Section 13.09 Waiver of Jury Trial.
EACH OF THE ISSUER, THE GUARANTORS, THE TRUSTEE AND THE AGENTS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 13.10 Force Majeure.
In no event shall the Trustee or any Agent be responsible or liable for any failure or delay in the performance of its obligations under this
Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation, non-Trustee strikes, work stoppages or accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
Section 13.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Restricted Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 13.12 Successors.
All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All agreements of the Trustee and the Agents in this
Indenture shall bind their successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.05 hereof.
Section 13.13 Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.14 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 13.15 Table of Contents, Headings, Etc.. The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 13.16 Entire Agreement.
This Agreement and the exhibits hereto set forth the entire agreement and understanding of the parties related to this transaction and
supersedes all prior agreements and understandings, oral or written.
[Signatures on following pages]
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PAR PETROLEUM, LLC
By:
/s/ Shawn Flores
Name: Shawn Flores
Title: Chief Financial Officer
PAR PACIFIC HOLDINGS, INC.
By:
/s/ Shawn Flores
Name: Shawn Flores
Title: Senior Vice President and Chief Financial Officer
PAR TACOMA, LLC
U.S. OIL & REFINING CO.
MCCHORD PIPELINE CO.
PAR HAWAII REFINING, LLC
HERMES CONSOLIDATED, LLC
WYOMING PIPELINE COMPANY LLC
PAR HAWAII, LLC
PAR MONTANA, LLC
PAR ROCKY MOUNTAIN MIDSTREAM, LLC
PAR PETROLEUM FINANCE CORP.
By:
/s/ Shawn Flores
Name: Shawn Flores
Title: Chief Financial Officer
[Signature Page to Indenture]
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee, Paying Agent, Registrar, Transfer Agent and Authenticating Agent
By:
/s/ Michael K. Herberger
Name: Michael K. Herberger
Title: Vice President
[Signature Page to Indenture]
EXHIBIT A
[Face of Note]
[Insert the
Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable
pursuant to the provisions of the Indenture]
[Insert the Regulation S Temporary Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
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CUSIP [70178J AB3/-U7025J AA9]
ISIN [-US70178JAB35/USU7025JAA98]1
[RULE 144A][REGULATION S] [GLOBAL] NOTE
[representing up to
$______________]2
7.375% Senior Notes due 2034
No. ___
PAR PETROLEUM, LLC
promises to pay to
[CEDE & CO.] or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of ________________________ United States
Dollars]3 on June 1, 2034.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
1
Rule 144A Note CUSIP: 70178J AB3
Rule 144A Note ISIN: US70178JAB35
Regulation S Note CUSIP: U7025J AA9
Regulation S Note ISIN: USU7025JAA98
2
Not to be included on Global Note
3
Not to be included on Global Note
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IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated: _________, 20____
PAR PETROLEUM, LLC
By:
Name: Shawn Flores
Title: Chief Financial Officer
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This is one of the Notes referred to in the within-mentioned Indenture:
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
As Trustee, Paying Agent, Registrar, Transfer Agent and Authenticating Agent
By:
Name:
Title:
Dated: _________, 20____
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[Back of Note]
7.375% Senior Notes due 2034
Capitalized terms
used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST.
Par Petroleum, LLC, a Delaware limited liability company (the “Issuer” or the “Company”), promises to pay interest on the principal amount of this Note at 7.375% per annum from December 1, 2026 until
maturity. The Issuer will pay interest semi-annually in arrears on June 1 and December 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”).
Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that the first Interest Payment Date shall be December 1, 2026. The Issuer
will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
2. METHOD OF
PAYMENT. The Issuer will pay interest on the Notes to the Persons who are registered Holders of Notes at the close of business on May 15 and November 15 (whether or not a Business Day), as the case may be, next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Payment of interest may be made by
check mailed to the Holders at their addresses set forth in the register of Holders, provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium, on, all Global Notes and
all other Notes the Holders of which shall have provided wire transfer instructions to the Issuer or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
3. AGENTS. Initially, U.S. Bank Trust Company, National Association will act as Paying Agent,
Transfer Agent, Authenticating Agent and Registrar. The Company may change any Agent without notice to the Holders. The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Issuer issued the Notes under an Indenture, dated as of May 14, 2026 (the “Indenture”), among
the Issuer, the Guarantors named therein, and U.S. Bank Trust Company, National Association, as Trustee, Paying Agent, Transfer Agent, Authenticating Agent and Registrar. This Note is one of a duly authorized issue of notes of the Issuer designated
as its 7.375% Senior Notes due 2034. The Issuer shall be entitled to issue Additional Notes pursuant to Section 2.01 and Section 4.09 of the Indenture. The Notes are subject to all such terms, and Holders are referred to the
Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) Except as described below under clauses 5(b) and 5(c) hereof, the Notes will not be redeemable at the Issuer’s option before
June 1, 2029.
(b) At any time prior to June 1, 2029, the Issuer may redeem all or a part of the Notes, upon not less than 10
nor more than 60 days’ prior notice mailed by first-class mail or otherwise delivered to the registered address of each Holder of Notes or otherwise delivered in accordance with the procedures of DTC, at a redemption price equal to 100% of the
principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but not including, the date of redemption (the “Redemption Date”), subject to the rights of Holders of Notes on
the relevant Record Date to receive interest due on the relevant Interest Payment Date.
(c) Until June 1, 2029, the Issuer may, at
its option, on one or more occasions redeem up to 40% of the aggregate principal amount of Notes at a redemption price equal to 107.375% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon, if any, to the applicable
Redemption Date, subject to the right of Holders of Notes of record on the relevant Record Date to receive interest due on the relevant Interest Payment
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Date, with an amount equal to the net cash proceeds of one or more Equity Offerings; provided that at least 60% of the aggregate principal amount of Notes originally issued under the
Indenture remains outstanding immediately after the occurrence of each such redemption. Any such redemption will be required to occur on or prior to 180 days after our receipt of the net cash proceeds of such Equity Offering and upon not less than
10 nor more than 60 days’ notice mailed to each Holder of Notes to be redeemed at such Holder’s address appearing in our security register, in principal amounts of $2,000 or an integral multiple of $1,000 in excess thereof.
(d) On and after June 1, 2029, the Issuer may redeem the Notes, in whole or in part, upon not less than 10 days prior written notice to
the Registrar and not less than 10 nor more than 60 days’ prior notice by first-class mail, postage prepaid, or other delivery with a copy to the Trustee, the Registrar and the Paying Agent, to each Holder of Notes at the address of such
Holder appearing in the security register, at the redemption prices (expressed as percentages of principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest thereon, if any, to the applicable Redemption Date,
subject to the right of Holders of Notes of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date, if redeemed during the 12-month period beginning on June 1 in
the years indicated below:
Year
Percentage
2029
103.688
%
2030
101.844
%
2031 and thereafter
100.000
%
(e) Any notice of redemption may, at the Issuer’s discretion, be subject to one or more conditions
precedent.
(f) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of Sections 3.01 through
3.07 of the Indenture.
6. MANDATORY REDEMPTION. The Notes shall not be subject to mandatory redemption or sinking fund
payments.
7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the Indenture, notice of redemption will be mailed by
first-class mail or otherwise delivered at least 10 days but not more than 60 days before the redemption date (except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with
Article VIII or Article X of the Indenture) to each Holder whose Notes are to be redeemed at its registered address or otherwise in accordance with the procedures of DTC. Notes in denominations larger than $2,000 may be redeemed in part but only in
whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption.
8. OFFERS TO REPURCHASE.
(a) Upon the occurrence of a Change of Control that results in a Ratings Decline, the Issuer shall make an offer (a “Change of
Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest thereon, if any, to but excluding the date of purchase (the “Change of Control Payment”). The Change of Control Offer shall be made in accordance with Section 4.14 of the Indenture.
(b) If the Company or any of its Restricted Subsidiaries consummates an Asset Sale, within 10 Business Days of each date that the
aggregate amount of Excess Proceeds exceeds $50.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required or permitted or such earlier date if the Issuer so elects by the terms of any other Pari Passu Indebtedness,
to the holders of such Senior Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in
excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date fixed for the closing of such offer, in accordance
with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the
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Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in the Indenture. If the aggregate principal amount of Notes
or the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Registrar shall select the Notes to be purchased by lot or by such other method in accordance with the procedures of DTC and the
representatives for the holders of such other Pari Passu Indebtedness shall select such other Pari Passu Indebtedness, to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes and such Pari Passu
Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(c) The Issuer
may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after consummation of such Asset Sales. Upon consummation of such Asset Sale Offer, any Net Proceeds not required to be used to purchase Notes shall not be
deemed Excess Proceeds.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of
$2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar or the Transfer Agent may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the Notes may be amended or supplemented as provided in the
Indenture.
12. DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the
Indenture. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare the principal, premium, if any, interest and any other monetary obligations on all
the then outstanding Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately
without further action or notice. Holders may not enforce the Indenture, the Notes or the Guarantees except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default (except a Default relating to the payment of principal, premium, if any, or interest) if it
determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default and
its consequences under the Indenture except a continuing Default in payment of the principal of, premium, if any, or interest on, any of the Notes held by a non-consenting Holder and rescind any acceleration
with respect to the Notes and its consequences (provided such rescission would not conflict with any judgment of a court of competent jurisdiction). The Issuer and each Guarantor is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Issuer is required within five (5) Business Days after becoming aware of any Default, to deliver to the Trustee a statement specifying such Default and what action the Issuer proposes to take with respect
thereto.
13. GUARANTEES. The Issuer’s obligations under the Notes are fully and unconditionally guaranteed, jointly and
severally, by the Guarantors.
14. AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose until authenticated by the manual signature of the Authenticating Agent.
15. [Reserved].
16. GOVERNING LAW. The LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE GUARANTEES.
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17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and the Registrar may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to the Issuer at
the following address:
Par Pacific Holdings, Inc.
825
Town & Country Lane, Suite 1500
Houston, Texas 77024
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note
to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
SIGNATURE GUARANTEE:
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or 4.14 of the Indenture, check the appropriate
box below:
☐
Section 4.10 ☐ Section 4.14
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.10 or Section 4.14 of the
Indenture, state the amount you elect to have purchased:
$
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
SIGNATURE GUARANTEE:
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $__________. The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global or Definitive Note for an interest in this Global Note, have been made:
Date of Exchange
Amount of
decrease in
Principal
Amount
Amount of
increase in
Principal
Amount of
this Global
Note
Principal
Amount of
this Global
Note
following
such decrease
or increase
Signature of
authorized
officer of
Trustee
or
Note
Custodian
*
This schedule should be included only if the Note is issued in global form.
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Par Pacific
Holdings, Inc.
825 Town & Country Lane, Suite 1500
Houston, Texas 77024
Attention: Jeffrey R. Hollis; Allison
Childs
Email: [***]; [***]
U.S. Bank Trust Company,
National Association
1255 Corporate Drive, 6th Floor
Irving, TX 75038
Attention: Global Corporate Trust – Par
Petroleum
Email: [***]
Re:
7.375% Senior Notes due 2034
Reference is hereby made to the Indenture, dated as of May 14, 2026 (the “Indenture”), among the Issuer, the
Guarantors named therein, and U.S. Bank Trust Company, National Association, as Trustee, Paying Agent, Transfer Agent, Authenticating Agent and Registrar. Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.
_______________ (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s]
specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to _______________ (the “Transferee”), as further specified in Annex A hereto. In connection
with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. ☐ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE
144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further
certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect
to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
2. ☐ CHECK IF
TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and
(iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Indenture and the Securities Act.
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3. ☐ CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor
hereby further certifies that (check one):
(a) ☐ such Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;
or
(b) ☐ such Transfer is being effected to the Issuer or a subsidiary thereof;
or
(c) ☐ such Transfer is
being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act.
4. ☐ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE
NOTE.
(a) ☐ CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in
the Indenture.
(b) ☐ CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(c) ☐ CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the
statements contained herein are made for your benefit and the benefit of the Issuer.
[Insert Name of Transferor]
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By:
Name:
Title:
Dated:
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ANNEX A TO CERTIFICATE OF TRANSFER
1.
The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b) ]
(a)
☐ a beneficial interest in the:
(i)
☐ 144A Global Note (CUSIP [__]), or
(ii)
☐ Regulation S Global Note (CUSIP [__]), or
(b)
☐ a Restricted Definitive Note.
2.
After the Transfer the Transferee will hold:
[CHECK ONE]
(a)
☐ a beneficial interest in the:
(i)
☐ 144A Global Note (CUSIP [__]), or
(ii)
☐ Regulation S Global Note (CUSIP [__]), or
(iii)
☐ Unrestricted Global Note (CUSIP [ _]); or
(b)
☐ a Restricted Definitive Note; or
(c)
☐ an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Par Pacific
Holdings, Inc.
825 Town & Country Lane, Suite 1500
Houston, Texas 77024
Attention: Jeffrey R. Hollis; Allison
Childs
Email: [***]; [***]
U.S. Bank Trust Company,
National Association
1255 Corporate Drive, 6th Floor
Irving, TX 75038
Attention: Global Corporate Trust – Par
Petroleum
Email: [***]
Re:
7.375% Senior Notes due 2034
Reference is hereby made to the Indenture, dated as of May 14, 2026 (the “Indenture”), among the Issuer, the
Guarantors named therein, and U.S. Bank Trust Company, National Association, as Trustee, Paying Agent, Transfer Agent, Authenticating Agent and Registrar. Capitalized terms used but not defined herein shall have the meanings given to them in the
Indenture.
___________ (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $__________ in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
a) ☐ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST
IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in
an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
b) ☐ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
c) ☐ CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii)
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such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
d) ☐ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the United States.
2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES
OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
a) ☐ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In
connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for
the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
b)
☐ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
☐ 144A Global Note ☐ Regulation S Global Note, with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the
relevant Restricted Global Note and in the Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer
and are dated ______________________.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
C-3
EXHIBIT D
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
Supplemental Indenture (this “Supplemental Indenture”), dated as of __________, among __________________ (the
“Guaranteeing Subsidiary”), a subsidiary of Par Petroleum, LLC, a Delaware limited liability company (the “Company” or the “Issuer”), U.S. Bank Trust Company, National Association, as trustee
(the “Trustee”), as paying agent (the “Paying Agent”), transfer agent (the “Transfer Agent”), registrar (the “Registrar”) and authenticating agent (the
“Authenticating Agent” and together with the Paying Agent, the Transfer Agent and the Registrar, the “Agents”).
W I T N E S S E T H
WHEREAS,
each of the Issuer and the Guarantors (as defined in the Indenture referred to below) has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of May 14, 2026, providing for the issuance
of an unlimited aggregate principal amount of 7.375% Senior Notes due 2034 (the “Notes”);
WHEREAS, the Indenture
provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuer’s
Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Issuer, the Trustee and the Agents are authorized to execute and deliver this
Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
(1) Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the
Indenture.
(2) Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:
(a) Along with all Guarantors named in the Indenture, to jointly and severally unconditionally guarantee to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee, the Agents and their respective successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Issuer hereunder or
thereunder, that:
(i) the principal of and interest, premium, if any, on the Notes will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee or the Agents hereunder
or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(ii)
in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity,
by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors and the Guaranteeing Subsidiary shall be jointly and severally obligated to pay the same
immediately. This is a guarantee of payment and not a guarantee of collection.
D-1
(b) The obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(c) The following is hereby waived, to the extent permitted by law: diligence, presentment, demand of payment, filing of claims
with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever.
(d) This Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes, the
Indenture and this Supplemental Indenture, and the Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Indenture.
(e) If any Holder or the Trustee or any Agent is required by any court or otherwise to return to the Issuer, the Guarantors
(including the Guaranteeing Subsidiary), or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder or such Agent, this Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall
not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.
(g) As between the Guaranteeing Subsidiary, on the one hand, and the Holders, the Agents and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI of the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article VI of the Indenture, such obligations (whether or not due and payable) shall forthwith become due
and payable by the Guaranteeing Subsidiary for the purpose of this Guarantee.
(h) The Guaranteeing Subsidiary shall have
the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Guarantee.
(i) After giving effect to all other contingent and fixed liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under Article X of the
Indenture, this new Guarantee shall be limited to the maximum amount permissible such that the obligations of such Guaranteeing Subsidiary under this Guarantee will not constitute a fraudulent transfer or conveyance.
(j) This Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or
against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and
shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligees on the Notes and Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any
payment or any part thereof, is rescinded, reduced, restored or returned, the Note shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
D-2
(k) In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(l) This Guarantee shall be a general senior unsecured obligation of such Guaranteeing Subsidiary, ranking equally in right of
payment with all existing and future senior Indebtedness of the Guaranteeing Subsidiary.
(m) Each payment to be made by
the Guaranteeing Subsidiary in respect of this Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(3) Execution and Delivery. The Guaranteeing Subsidiary agrees that the Guarantee shall remain in full force and effect
notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
(4) Merger, Consolidation
or Sale of All or Substantially All Assets.
(a) Except as otherwise provided in Section 5.01(c) of the Indenture, the
Guaranteeing Subsidiary may not consolidate or merge with or into or wind up into (whether or not the Issuer or Guaranteeing Subsidiary is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (a) the
Guaranteeing Subsidiary is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than the Guaranteeing Subsidiary) or to which such sale, assignment, transfer, lease, conveyance or other disposition
will have been made is a corporation organized or existing under the laws of the jurisdiction of organization of the Guaranteeing Subsidiary, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any
territory thereof (the Guaranteeing Subsidiary or such Person, as the case may be, being herein called the “Successor Person”);
(b) the Successor Person, if other than the Guaranteeing Subsidiary, expressly assumes all the obligations of the Guaranteeing
Subsidiary under the Indenture and the Guaranteeing Subsidiary’s related Guarantee pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee and the Agents;
(c) immediately after such transaction, no Default exists; and
(d) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indentures, if any, comply with the Indenture; or
(ii) the
transaction is made in compliance with Section 4.10 of the Indenture;
(e) Subject to certain limitations described in
the Indenture, the Successor Person will succeed to, and be substituted for, the Guaranteeing Subsidiary under the Indenture and the Guaranteeing Subsidiary’s Guarantee. Notwithstanding the foregoing, the Guaranteeing Subsidiary may merge into
or transfer all or part of its properties and assets to another Guarantor or the Issuer.
(5) Releases. The
Guarantee of the Guaranteeing Subsidiary shall be automatically and unconditionally released and discharged, and no further action by the Guaranteeing Subsidiary, the Issuer, the Agents or the Trustee is required for the release of the Guaranteeing
Subsidiary’s Guarantee, upon:
D-3
(a) (i) any sale, exchange or transfer (by merger or otherwise) of
(i) the Capital Stock of the Guaranteeing Subsidiary, after which the Guaranteeing Subsidiary is no longer a Restricted Subsidiary or (ii) all or substantially all the assets of the Guaranteeing Subsidiary, in each case, to a Person that
is not the Issuer or a Guarantor, which sale, exchange or transfer is made in compliance with the applicable provisions of the Indenture;
(iii) [Reserved];
(iv) the proper designation of the Guaranteeing Subsidiary as an Unrestricted Subsidiary;
(v) the Issuer exercising its Legal Defeasance option or Covenant Defeasance option in accordance with Article VIII of the
Indenture or the Issuer’s obligations under the Indenture being discharged in accordance with the terms of the Indenture; or
(vi) upon the liquidation or dissolution of the Guaranteeing Subsidiary; provided that no Default or Event of Default has
occurred and is continuing; and
(b) the Issuer delivering to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for in the Indenture relating to such transaction have been complied with.
(6) No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Guaranteeing
Subsidiary shall have any liability for any obligations of the Issuer or the Guarantors (including the Guaranteeing Subsidiary) under the Notes, any Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(7) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(8) Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same agreement.
(9) Effect of Headings.
The Section headings herein are for convenience only and shall not affect the construction hereof.
(10) The Trustee and
the Agents. Neither the Trustee nor any Agent shall be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Issuer and the Guaranteeing Subsidiary.
(11) Subrogation. The Guaranteeing
Subsidiary shall be subrogated to all rights of Holders of Notes against the Issuer in respect of any amounts paid by the Guaranteeing Subsidiary pursuant to the provisions of Section 2 hereof and Section 10.01 of the Indenture;
provided that, if an Event of Default has occurred and is continuing, the Guaranteeing Subsidiary shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and
payable by the Issuer under the Indenture or the Notes shall have been paid in full.
(12) Benefits Acknowledged.
The Guaranteeing Subsidiary’s Guarantee is subject to the terms and conditions set forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated
by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this Guarantee are knowingly made in contemplation of such benefits.
D-4
(13) Successors. All agreements of the Guaranteeing Subsidiary in
this Supplemental Indenture shall bind its Successors, except as otherwise provided in Section 2(k) hereof or elsewhere in this Supplemental Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
D-5
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as
of the date first above written.
[GUARANTEEING SUBSIDIARY]
By:
Name:
Title:
PAR PETROLEUM, LLC, as Issuer
By:
Name:
Title:
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee, Paying Agent, Registrar, Transfer Agent and Authenticating Agent
By:
Name:
Title:
D-6
EX-10.1
EX-10.1
Filename: d176382dex101.htm · Sequence: 3
EX-10.1
Exhibit 10.1
Execution Version
AMENDED AND RESTATED ASSET-BASED REVOLVING CREDIT AGREEMENT
by and among
PAR
PACIFIC HOLDINGS, INC.,
as Holdings,
PAR PETROLEUM, LLC,
PAR HAWAII, LLC,
HERMES CONSOLIDATED, LLC,
WYOMING PIPELINE COMPANY LLC,
PAR MONTANA, LLC,
PAR
ROCKY MOUNTAIN MIDSTREAM, LLC
U.S. OIL & REFINING CO. and
PAR HAWAII REFINING, LLC
as Borrowers,
WELLS
FARGO BANK, NATIONAL ASSOCIATION,
as Agent, Issuing Bank, and Swing Lender,
THE LENDERS THAT ARE PARTIES HERETO,
as the Lenders,
THE
OTHER ISSUING BANKS THAT ARE PARTIES HERETO,
as Issuing Banks and
Wells Fargo Bank, National Association, Bank of America, N.A., MUFG Bank, LTD, Regions Bank, U.S. Bank, National Association, Citibank,
N.A., The Bank of Nova Scotia and Truist Securities, Inc.,
as Joint Lead Arrangers and Joint Bookrunners
Dated as of May 14, 2026
TABLE OF CONTENTS
Page
1. DEFINITIONS AND CONSTRUCTION
1
1.1
Definitions
1
1.2
Accounting Terms
90
1.3
UCC
90
1.4
Construction
91
1.5
Time References
92
1.6
Schedules and Exhibits
92
1.7
Rates
92
1.8
Cashless Rollovers
93
1.9
Limited Condition Transaction
93
1.10
Divisions
94
1.11
Information Limitation
94
2. LOANS AND TERMS OF PAYMENT
94
2.1
Revolving Loans
94
2.2
[Reserved]
95
2.3
Borrowing Procedures and Settlements
95
2.4
Payments; Reductions of Commitments; Prepayments
103
2.5
Promise to Pay; Promissory Notes
108
2.6
Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations
108
2.7
Crediting Payments
110
2.8
Designated Account
110
2.9
Maintenance of Loan Account; Statements of Obligations
111
2.10
Fees
111
2.11
Letters of Credit
111
2.12
SOFR Options
120
2.13
Capital Requirements
124
2.14
Incremental Facilities
126
2.15
Joint and Several Liability of Borrowers
127
2.16
Extensions of Revolver Commitments
130
2.17
Agent’s Clawback
133
2.18
Taxes.
134
3. CONDITIONS
138
3.1
Conditions Precedent to the Initial Loans
138
3.2
Conditions Precedent to all Extensions of Credit
138
3.3
Maturity
138
3.4
Effect of Maturity
138
3.5
Early Termination by Borrowers
138
3.6
Conditions Subsequent
139
4. REPRESENTATIONS AND WARRANTIES
139
4.1
Due Organization and Qualification; Subsidiaries
139
4.2
Due Authorization; No Conflict
140
TABLE OF CONTENTS
(continued)
Page
4.3
Governmental Consents
140
4.4
Binding Obligations; Perfected Liens
141
4.5
Title to Assets; No Encumbrances
141
4.6
Litigation
141
4.7
Compliance with Laws
141
4.8
Financial Statements; No Material Adverse Effect
141
4.9
Solvency
142
4.10
Employee Benefits
142
4.11
Environmental Condition
142
4.12
Complete Disclosure
143
4.13
Patriot Act
143
4.14
Payment of Taxes
143
4.15
Margin Stock
143
4.16
Governmental Regulation
144
4.17
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws
144
4.18
Employee and Labor Matters
144
4.19
Eligible Accounts Receivables
144
4.20
Location of Chief Executive Office; Registered Offices
145
4.21
Eligible Environmental Assets; RFS
145
4.22
Insurance
145
4.23
Security Documents
146
4.24
Intermediation Documents
146
4.25
Affected Financial Institution
146
5. AFFIRMATIVE COVENANTS
146
5.1
Financial Statements, Reports, Certificates
146
5.2
Reporting
146
5.3
Existence
147
5.4
Maintenance of Properties
147
5.5
Taxes
148
5.6
Insurance
148
5.7
Inspections; Examinations; Books and Records
148
5.8
Compliance with Laws
149
5.9
Environmental
150
5.10
[Reserved]
150
5.11
Formation of Subsidiaries
150
5.12
Further Assurances
151
5.13
Compliance with ERISA and the IRC
152
5.14
ABL Collateral Administration.
152
5.15
Landlord and Storage Agreement
156
5.16
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws
157
5.17
Beneficial Ownership Regulation
157
5.18
Intermediation Documents
157
6. NEGATIVE COVENANTS
157
TABLE OF CONTENTS
(continued)
Page
6.1
Indebtedness
157
6.2
Liens
157
6.3
Restrictions on Fundamental Changes
157
6.4
Disposal of Assets
160
6.5
Nature of Business
160
6.6
Prepayments and Amendments
160
6.7
Restricted Payments
160
6.8
Accounting Methods; Organizational Documents
164
6.9
Transactions with Affiliates
164
6.10
Use of Proceeds
166
6.11
Designation of Restricted and Unrestricted Subsidiaries
167
6.12
Burdensome Agreements
168
6.13
Hedging
170
6.14
Financial Covenant
170
6.15
Intermediation Facilities
171
6.16
Holdings Covenant
171
7. EVENTS OF DEFAULT
172
7.1
Payments
172
7.2
Covenants
172
7.3
Judgments.
173
7.4
Voluntary Bankruptcy, etc
173
7.5
Involuntary Bankruptcy, etc
173
7.6
Default Under Other Agreements
173
7.7
Representations, etc.
174
7.8
Guaranty
174
7.9
Security Documents
174
7.10
Loan Documents
174
7.11
Change of Control
174
7.12
ERISA
174
7.13
Certain Environmental Event
175
7.14
Intercreditor Provisions
175
8. RIGHTS AND REMEDIES
175
8.1
Rights and Remedies
175
8.2
Remedies Cumulative
176
9. WAIVERS; INDEMNIFICATION
176
9.1
Demand; Protest; etc
176
9.2
The Lender Group’s Liability for Collateral
176
9.3
Indemnification
177
10. NOTICES
178
TABLE OF CONTENTS
(continued)
Page
11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE
PROVISION
179
12. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS
180
12.1
Assignments and Participations
180
12.2
Successors
185
13. AMENDMENTS; WAIVERS
185
13.1
Amendments and Waivers
185
13.2
No Waivers; Cumulative Remedies
189
13.3
Replacement of Certain Lenders.
189
14. AGENT; THE LENDER GROUP;
190
14.1
Appointment and Authorization of Agent
190
14.2
Delegation of Duties
191
14.3
Liability of Agent
191
14.4
Reliance by Agent
192
14.5
Notice of Default or Event of Default
192
14.6
Credit Decision
193
14.7
Costs and Expenses; Indemnification
193
14.8
Agent in Individual Capacity
194
14.9
Successor Agent
194
14.10
Lender in Individual Capacity
195
14.11
Collateral and Guaranty Matters
195
14.12
Restrictions on Actions by Lenders; Sharing of Payments
198
14.13
Agency for Perfection
199
14.14
Payments by Agent to the Lenders
199
14.15
Concerning the Collateral and Related Loan Documents
199
14.16
Field Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information
199
14.17
Several Obligations; No Liability
201
14.18
Joint Lead Arrangers
201
14.19
Erroneous Payments
201
14.20
Agent Professionals
203
14.21
Collateral Agent
204
15. [Reserved]
204
16. GENERAL PROVISIONS
204
16.1
Effectiveness
204
16.2
Section Headings
204
16.3
Interpretation
204
16.4
Severability of Provisions
204
16.5
Bank Product Providers
204
TABLE OF CONTENTS
(continued)
Page
16.6
Debtor-Creditor Relationship
205
16.7
Counterparts; Electronic Execution
205
16.8
Revival and Reinstatement of Obligations; Certain Waivers
206
16.9
Confidentiality
207
16.10
Survival
209
16.11
Patriot Act; Due Diligence
209
16.12
Integration
209
16.13
Release of Guarantors and Collateral
209
16.14
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
210
16.15
Certain ERISA Matters
210
16.16
Permitted Intercreditor Agreements
212
16.17
The Administrative Borrower
213
16.18
Acknowledgment Regarding Any Support QFCs
214
16.19
Amendment and Restatement
215
EXHIBITS AND SCHEDULES
Exhibit A
Form of Assignment and Acceptance
Exhibit B-1
Form of Compliance Certificate
Exhibit B-2
Bank Product Provider Agreement
Exhibit C
Form of Note
Exhibit D
Form of Perfection Certificate
Exhibit E
Form of Notice of Borrowing
Exhibit F
Form of Notice of Conversion
Exhibit G-1
Form of U.S. Tax Compliance Certificate (Non-Partnership Foreign Lenders)
Exhibit G-2
Form of U.S. Tax Compliance Certificate (Non-Partnership Foreign Participants)
Exhibit G-3
Form of U.S. Tax Compliance Certificate (Foreign Participant Partnerships)
Exhibit G-4
Form of U.S. Tax Compliance Certificate (Foreign Lender Partnerships)
Exhibit H
SOFR Notice
Schedule A
Agent’s Account
Schedule B-1
Existing Liens
Schedule C-1
Commitments
Schedule D-1
Designated Accounts
Schedule E-1
Existing Letters of Credit
Schedule F
Eligible Unbilled Accounts
Schedule G-1
Investment Grade Receivables
Schedule 1.2
Individual Letter of Credit Sublimits
Schedule 3.1
Conditions Precedent
Schedule 3.6
Conditions Subsequent
Schedule 4.1(b)
Capitalization of Borrower
Schedule 4.1(c)
Capitalization of Borrower’s Subsidiaries
Schedule 4.10
ERISA
Schedule 4.11
Environmental Matters
Schedule 4.14
Indebtedness
Schedule 4.20
Chief Executive Offices/Registered Offices/Location of Inventory
Schedule 5.1
Financial Statements, Reports, Certificates
Schedule 5.2
Reporting
Schedule 6.9
Affiliate Transactions
Schedule 6.12
Burdensome Agreements
AMENDED AND RESTATED ASSET-BASED REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED ASSET-BASED REVOLVING CREDIT AGREEMENT, is entered into as of May 14, 2026, by and among PAR PACIFIC
HOLDINGS, INC., a Delaware corporation (“Holdings”), PAR PETROLEUM, LLC, a Delaware limited liability company (the “Par Borrower”), PAR HAWAII, LLC, a Delaware limited
liability company (the “Par Hawaii”), HERMES CONSOLIDATED, LLC, a Delaware limited liability company (the “Hermes”), WYOMING PIPELINE COMPANY LLC, a Wyoming limited liability company,
(“Wyoming Pipeline”), PAR MONTANA, LLC, a Delaware limited liability company (“Par Montana”), PAR ROCKY MOUNTAIN MIDSTREAM, LLC, a Delaware limited liability company,
(“Par Rocky”), U.S. OIL & REFINING CO., a Delaware corporation (“USOR”) and Par Hawaii Refining, LLC, a Hawaii limited liability company (“Par
Hawaii Refining”, and collectively, with the Par Borrower, Par Hawaii, Hermes, Wyoming Pipeline, Par Montana, USOR and Par Hawaii Refining, the “Borrowers”), the lenders identified on the signature pages
hereof (each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a “Lender”, as that term is hereinafter further defined), the issuing banks party hereto from time to time,
WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“Wells Fargo”), as administrative agent and collateral agent for each member of the Lender Group (as defined below) (in such capacity, together
with its successors and assigns in such capacity, “Agent”).
The Borrowers, the Lenders and the Agent are
parties to the Asset-Based Revolving Credit Agreement dated as of April 26, 2023 (as amended and otherwise modified to date, the “Existing Agreement”), pursuant to which the Lenders made available Revolver Commitments in a
maximum aggregate amount of $1,400,000,000.
The Borrower, the Lenders and the Agent have agreed to amend and restate the Existing
Agreement in its entirety as, and in accordance with and subject to the terms and conditions, set forth herein.
The parties agree as
follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 Definitions. As used in this Agreement, the following terms shall have the following definitions:
“Account” means an account (as that term is defined in the UCC), including all rights to payment for goods sold or
leased, or for services rendered.
“Account Debtor” means a Person obligated under an Account, Chattel Paper or
General Intangible.
“Account Party” has the meaning specified therefor in
Section 2.11(h) of this Agreement.
“Accounting Changes” means
changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency
with similar functions).
“Acquisition” means (a) the purchase or other acquisition by a Person or its
Subsidiaries of all or substantially all of the assets of (or any division or business line of) any other Person, or (b) the purchase or other acquisition (whether by means of a merger, consolidation, amalgamation or otherwise) by a Person or
its Subsidiaries of all or substantially all of the Equity Interests of any other Person.
“Adjusted Excess Availability” means, as of any time of
determination, the amount equal to (a) Excess Availability plus (b) Suppressed Availability.
“Additional
Documents” has the meaning specified therefor in Section 5.12 of this Agreement.
“Administrative Borrower” has the meaning specified therefor in
Section 16.17 of this Agreement.
“Administrative Questionnaire”
has the meaning specified therefor in Section 12.1(a) of this Agreement.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial
Institution.
“Affected Lender” has the meaning specified therefor in
Section 2.13(b) of this Agreement.
“Affiliate” means, as applied
to any Person, any other Person who controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” means the possession, directly or indirectly through one or more intermediaries, of
the power to direct the management and policies of a Person, whether through the ownership of Equity Interests, by contract, or otherwise.
“Agent” has the meaning specified therefor in the preamble to this Agreement.
“Agent-Related Persons” means Agent, together with its Affiliates, officers, directors, employees, attorneys,
representatives and agents.
“Agent’s Account” means the Deposit Account of Agent identified on Schedule A
to this Agreement (or such other Deposit Account of Agent that has been designated as such, in writing, by Agent to Borrowers and the Lenders).
“Agent’s Liens” means the Liens granted by each Loan Party or its Subsidiaries to Agent under the Loan
Documents and securing the Obligations.
“Agreement” means this Amended and Restated Asset-Based Revolving
Credit Agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“AHYDO
Payment” means any prepayment or redemption pursuant to the terms of any Indebtedness that is intended or designed to cause such Indebtedness not to be treated as an “applicable high yield discount obligation” within the
meaning of Section 163(i) of the IRC.
“Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act of 2010,
as amended, and all other applicable laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or Subsidiary or Affiliate thereof is located or is doing business.
“Anti-Money Laundering Laws” means the applicable laws or regulations in any jurisdiction in which any Loan
Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.
2
“Applicable Law” means all applicable provisions of constitutions,
laws (including principles of common law), statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals and orders of Governmental Authorities and all applicable orders and decrees of all courts and arbitrators.
“Applicable Margin” means, as of any date of determination and with respect to Base Rate Loans, SOFR Loans or
Letters of Credit, as applicable, the applicable margin set forth in the following table that corresponds to the Average Excess Availability calculation for the most recently completed calendar quarter; provided, that, for the period
from the Closing Date through and including June 30, 2026, the Applicable Margin shall be set at the margin in the row styled “Level I”:
Level
Average Excess
Availability
Applicable Margin
for Base Rate Loans
(the
“Base Rate
Margin”)
Applicable Margin
for SOFR Loans
(the
“SOFR
Margin”)
Applicable Margin
for Letters of Credit
(the
“Letter of Credit
Margin”)
I
> 50.0% of the Maximum Revolver Amount
0.25 percentage points
1.25 percentage points
1.00 percentage points
II
≤ 50.0% of the Maximum Revolver Amount and > 30.0% of the Maximum Revolver Amount
0.50 percentage points
1.50 percentage points
1.25 percentage points
III
≤30.0% of the Maximum Revolver Amount
0.75 percentage points
1.75 percentage points
1.50 percentage points
The Applicable Margin shall be re-determined as of the first day of
each calendar quarter.
“Applicable Unused Line Fee Percentage” means 0.250 percentage points.
“Application Event” means the occurrence of (a) a failure by Borrowers to repay all of the Obligations in full
on the applicable Maturity Date, (b) an Event of Default (other than under Section 7.4 or Section 7.5) and the election by the Required Lenders to
require that payments and proceeds of Collateral be applied pursuant to Section 2.4(b)(iii) of this Agreement, or (c) an Event of Default under
Section 7.4 or Section 7.5.
“Asphalt” means liquid asphalt, including blended liquid asphalt.
“Assignee” has the meaning specified therefor in Section 12.1(a) of
this Agreement.
“Assignment and Acceptance” means an Assignment and Acceptance Agreement substantially in the
form of Exhibit A to this Agreement or any other form approved by the Agent.
“Attributable
Indebtedness” means, on any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP in all material
respects.
“Authorized Persons” means as to any Person, the Chairman of the Board of Directors, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the General Counsel, the Secretary or any Vice-President of such
Person, and any other officer designated as such in writing to the Agent by such Person. Unless the context otherwise provides in this Agreement, any reference to an Authorized Person shall be deemed to be a reference to an Authorized Person of the
Par Borrower.
3
“Availability Reserve” means the sum (without duplication) of
(a) the Inventory Reserve;
(b)
the Rent and Charges Reserve;
(c) the Tax Reserve;
(d) the Bank Product Reserve;
(e) the aggregate amount of liabilities (other than First Purchase Crude Payables) secured by Liens upon Collateral that are senior to the
Agent’s Liens on the Collateral (but imposition of any such reserve shall not waive an Event of Default, if any, arising therefrom);
(f) the First Purchaser Reserve;
(g) the Dilution Reserve;
(h)
with respect to Inventory consisting of tank heels or tank bottoms, reserves for estimated evacuation, extraction and/or other removal costs;
(i) any reserve instituted by the Agent in accordance with Section 6.7(b)(i); and
(j) such additional reserves, in such amounts and with respect to such matters, as Agent in its Permitted Discretion may elect and promptly
communicate to the Borrowers in writing to impose from time to time.
“Available Increase Amount” means, as of
any date of determination, (a) an amount equal to the greater of (x) $500,000,000 and (y) 100% of EBITDA as of the most recently ended four full fiscal quarters for which internal financial statements are available prior to such date
minus (b) the aggregate principal amount of Increases to the Revolver Commitments made after the Closing Date pursuant to Section 2.14 of this Agreement.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as
applicable,
(a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for
determining the length of an interest period pursuant to this Agreement, or
(b) otherwise, any payment period for interest calculated with
reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement,
in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of
“Interest Period” pursuant to Section 2.12(d)(iii)(D).
“Average Excess Availability” means, with respect to any period, the sum of the aggregate amount of Excess
Availability for each day in such period (as reasonably calculated by Agent as of the end of each respective day) divided by the number of days in such period.
4
“Average Revolver Usage” means, with respect to any period, the
sum of the aggregate amount of Revolver Usage for each day in such period (calculated as of the end of each respective day) divided by the number of days in such period.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers
by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means
(a) with respect to any EEA Member Country implementing Article
55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and
(b) with respect to the United Kingdom, Part I of the United Kingdom
Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates
(other than through liquidation, administration or other insolvency proceedings).
“Bank Product” means any one
or more of the following financial products or accommodations extended to any Obligor or any of its Restricted Subsidiaries (excluding Intermediation Subsidiaries) by a Bank Product Provider: (a) credit cards (including commercial cards
(including so-called “purchase cards”, “procurement cards” or “p-cards”)), (b) payment card processing services, (c) debit
cards, (d) stored value cards, (e) Cash Management Services, or (f) transactions under Hedge Agreements.
“Bank
Product Agreements” means those agreements entered into from time to time by any Obligor or any of its Restricted Subsidiaries (excluding Intermediation Subsidiaries) with a Bank Product Provider in connection with the obtaining of any
of the Bank Products.
“Bank Product Collateralization” means providing Cash Collateral (pursuant to
documentation reasonably satisfactory to Agent) to be held by Agent for the benefit of the Bank Product Providers (other than the Hedge Providers) or by the applicable Bank Product Providers in an amount reasonably determined by Agent or the
applicable Bank Product Providers as sufficient to satisfy the reasonably estimated credit exposure, operational risk or processing risk with respect to the then existing Bank Product Obligations (other than Hedge Obligations); provided in no case
will such amount exceed 102.5% of such estimated credit exposure risk.
“Bank Product Obligations” means
(a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by each Obligor and its Restricted Subsidiaries (excluding
Intermediation Subsidiaries) to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising,
(b) all Hedge Obligations, and
(c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing
participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product Provider to an Obligor or its Restricted Subsidiaries (excluding
Intermediation Subsidiaries); provided, that “Bank Product Obligations” shall not include any of the foregoing with respect to any Intermediation Cash Management Services, Intermediation Documents or Intermediation Facilities.
5
“Bank Product Provider” means any Lender or any of its Affiliates,
including each of the foregoing in its capacity, if applicable, as a Hedge Provider, that is a Lender or an Affiliate of a Lender at the time such Bank Product is provided or entered into or that becomes a Lender or an Affiliate of a Lender
thereafter; provided, that no such Person (other than Wells Fargo or its Affiliates) shall constitute a Bank Product Provider with respect to a Bank Product unless and until Agent receives a Bank Product Provider Agreement from such Person
(a) on or prior to the Closing Date (within 10 days after the Closing Date or such later date as Agent shall agree to in writing in its sole
discretion) with respect to Bank Products provided on or prior to the Closing Date,
(b) on or prior to the date that is 10 days after the
provision of such Bank Product to an Obligor or its Restricted Subsidiaries (excluding Intermediation Subsidiaries) (or such later date as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided by a Lender or
its Affiliates after the Closing Date, or
(c) on or prior to the date that is 10 days (or such later date as Agent shall agree to in
writing in its sole discretion) after a Person becomes a Lender or an Affiliate of a Lender, to the extent such Person has an outstanding Bank Product provided to an Obligor or its Restricted Subsidiaries (excluding Intermediation Subsidiaries) at
the time such Person becomes a Lender or an Affiliate of a Lender.
“Bank Product Provider Agreement” means an
agreement in substantially the form attached hereto as Exhibit B-2 to this Agreement or otherwise in form and substance reasonably satisfactory to Agent, duly executed by the applicable Bank
Product Provider, the applicable Obligor, and Agent.
“Bank Product Reserves” means, as of any date of
determination, those reserves that Agent deems necessary or appropriate in its Permitted Discretion to establish (based upon the Bank Product Providers’ determination of the liabilities and obligations of each Loan Party and its Subsidiaries
in respect of Bank Product Obligations) in respect of Bank Products then provided or outstanding.
“Bankruptcy
Code” means title 11 of the United States Code, as in effect from time to time.
“Base Rate”
means, for any day, the greatest of (a) the Federal Funds Rate in effect on such day plus 1⁄2%, (b) Term SOFR for a one-month tenor in effect on such date, plus one percentage point; provided, that this clause (b) shall not be applicable during any period in which Term SOFR is unavailable or
unascertainable, and (c) the rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate” in effect on such day (the “Prime Rate”), with the
understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference
thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate. Each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime
Rate, the Federal Funds Rate or Term SOFR, as applicable (provided that clause (b) shall not be applicable during any period in which Term SOFR is unavailable or unascertainable). Notwithstanding the foregoing, in no event
shall the Base Rate be less than 1.00%.
“Base Rate Loan” means each portion of the Loan that bears interest at
a rate determined by reference to the Base Rate.
6
“Base Rate Margin” has the meaning specified therefor in the
definition of Applicable Margin.
“Benchmark” means, initially, the Term SOFR Reference Rate;
provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent
that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.12(d)(iii)(A).
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of:
(a) the alternate benchmark rate that has been selected by the Agent and the Par Borrower giving due consideration to (i) any selection or
recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the
then-current Benchmark for Dollar-denominated syndicated credit facilities, and
(b) the related Benchmark Replacement Adjustment;
provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the
Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment”
means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a
positive or negative value or zero) that has been selected by the Agent and the Par Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread
adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for
calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the
then-current Benchmark:
(a) in the case of clause (a) or (b) of the definition of “Benchmark
Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the
calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on
which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be
non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced
in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
7
For the avoidance of doubt, the “Benchmark Replacement Date” will
be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of
such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event”
means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a public statement or
publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such
Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark
(or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of
such Benchmark (or the published component used in the calculation thereof), the FRB, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution
authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the
administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or
publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, if the then-current Benchmark has any Available Tenors, a “Benchmark Transition Event” will be deemed to
have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation
thereof).
“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of
(a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public
statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark
Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with
Section 2.12(d)(iii) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with
Section 2.12(d)(iii).
“Beneficial Ownership Certification” means
a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
8
“Beneficial Ownership Regulation” means 31 C.F. R. §
1010.230.
“Billings Refinery” means the high-conversion, complex refinery located in Billings, Montana.
“Board of Directors” means, as to any Person, the board of directors (or comparable managers) of such Person, or any
committee thereof duly authorized to act on behalf of the board of directors (or comparable managers).
“Board of
Governors” means the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Borrowed Money” means, with respect to any Person, without duplication, its (a) Indebtedness that
(i) arises from the lending of money by any Person to such Person or (ii) is evidenced by notes, drafts, bonds, debentures, credit documents or similar instruments; (b) Capital Leases; (c) reimbursement obligations with respect
to drawn letters of credit; and (d) guaranties of any Indebtedness of the foregoing types owing by another Person.
“Borrower Group” means Par Borrower and its Restricted Subsidiaries, excluding any Intermediation Subsidiary.
“Borrower Materials” means Borrowing Base Reports, Compliance Certificates and other materials and/or information
provided by or on behalf of the Borrowers or any Subsidiary hereunder, as well as other Reports and other information provided by an Obligor to the Agent or the Lenders hereunder.
“Borrowers” has the meaning specified therefor in the preamble to this Agreement; provided that an
Authorized Person of the Par Borrower may designate from time to time any Borrower (other than Par Borrower) as a non-Borrower to the extent (a) such Authorized Person provides written notice to the
Agent, (b) such Borrower is not the primary borrower, obligor or applicant with respect to any Revolver Usage outstandings at such time, (c) the Payment Conditions are satisfied, (d) an updated pro forma Borrowing Base Report is
delivered and (e) either (i) such Person becomes a Guarantor hereunder or (ii) there is no Overadvance after such designation.
“Borrowing” means a group of Loans (including Swing Loans) or Extraordinary Advances that are made or converted
together on the same day and have the same interest option and, if applicable, Interest Period.
“Borrowing
Base” means, on any date of determination, an amount equal to the lesser of
(a) the aggregate of the Revolver Commitments;
and
(b) the sum of the following owned by an Obligor:
(i) 85% of Eligible Accounts Receivable (other than Eligible Investment Grade Receivables, Eligible Credit Card Receivables,
Eligible L/C-Backed Receivables and Eligible Unbilled Accounts); plus
(ii) 90% of
Eligible Investment Grade Receivables; plus
(iii) 90% of Eligible Credit Card Receivables; plus
(iv) 90% Eligible L/C-Backed Receivables; plus
9
(v) 80% of Eligible Refinery Hydrocarbon Inventory (other than
(A) Eligible Refinery Hydrocarbon Inventory at the Borrowers’ and Restricted Subsidiaries’ service stations and cardlocks and provided that tank heels or tank bottoms (excluding sludge, water and asphalt) will
be eligible up to 50% (before application of the advance rate) and (B) Eligible Petroleum Asphalt Inventory); provided, that, if the Loan Parties shall be in compliance with a Fixed Charge Coverage Ratio of not less than 1.50:1.00 for
the then most recently ended four full fiscal quarters for which internal financial statements are available, the amount under this clause (v) shall be increased to the lesser of (i) 85.0% of Eligible Refinery Hydrocarbon Inventory and
(ii) $35,000,000; plus
(vi) the lesser of (A) 80% of Eligible Refinery Hydrocarbon Inventory at the Borrowers’ and
the Restricted Subsidiaries’ service stations and cardlocks (provided that tank heels or tank bottoms (excluding sludge, water and asphalt) will be eligible up to 50% (before application of the advance rate)) and
(B) an amount equal to 10% of the Borrowing Base; plus
(vii) the lesser of (A) 65% of Eligible Lubricants Inventory
(other than Inventory consisting of tank heels or tank bottoms) and (B) an amount equal to 10% of the Borrowing Base; plus
(viii) 80% of Eligible In-Transit Crude Oil and Eligible
In-Transit Products; plus
(ix) the lesser of (A) 80% of the excess of:
(1) the amount available to be drawn under Letters of Credit issued in connection with purchases of crude oil that constitutes Petroleum Inventory by the Obligors over (2) the aggregate outstanding amounts payable by the Obligors to the
suppliers of such Petroleum Inventory that could be drawn under such Letters of Credit and (B) $450,000,000); plus
(x) the
lesser of (A) 85% of the Eligible Exchange Agreement Positive Balance and (B) $30,000,000; plus
(xi) the lesser of (A) 50%
of Eligible Merchandise Inventory and (B) an amount equal to 10% of the Borrowing Base; plus
(xii) the lesser of (A)
70% of Eligible Unbilled Accounts and (B) $15,000,000; plus
(xiii) at the option of the Borrowers, 100% of Eligible Cash;
plus
(xiv) the lesser of (A) 85% of Eligible Environmental Assets of the Obligors, and (B) an amount equal to 10% of
the Borrowing Base; plus
(xv) 100% of the value of Paid but Unexpired Standby Letters of Credit; plus
(xvi) 70% of Eligible Petroleum Asphalt Inventory, minus
(xvii) the Availability Reserve.
Notwithstanding anything to the contrary, the portion of the Borrowing Base comprised of Eligible Cash may be adjusted by Agent upon written
notice to the Administrative Borrower, based on Agent’s Permitted Discretion, on a daily basis to reflect the aggregate amount of Eligible Cash as of the open of business on each Business Day as verified by Agent (which verification may be by
receipt by Agent from the applicable Lender or Administrative Borrower of screenshots of each website of each applicable deposit bank or securities intermediary describing the balance in each applicable account holding Eligible Cash).
10
Receivables in respect of the PHR Borrowing Base may be included in the Borrowing Base prior
to the completion of a customary field exam and collateral audit in respect of such receivables, provided that the Agent shall have received evidence, in form and substance reasonably satisfactory to the Agent, of the termination of
the PHR Intermediation Facility and the release of all Liens related thereto, and notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, any inventory with respect to any PHR Borrowing Base shall be
calculated using real-time inventory methods on or about the date any such PHR Borrowing Base is included in a Borrowing Base Report.
“Borrowing Base Assets” means, with respect to the Obligors, Eligible Accounts Receivable, Eligible Investment Grade
Receivables, Eligible Credit Card Receivables, Eligible L/C-Backed Receivables, Eligible Refinery Hydrocarbon Inventory, Eligible Lubricants Inventory, Eligible
In-Transit Crude Oil, Eligible In-Transit Products, the Eligible Exchange Agreement Positive Balance, assets described in clause (ix) of the definition of
“Borrowing Base”, Eligible Merchandise Inventory, Eligible Unbilled Accounts, Eligible Cash, Eligible Environmental Assets and Eligible Petroleum Asphalt Inventory.
“Borrowing Base Report” means a report of the Borrowing Base by Borrowers, in form and substance satisfactory to
Agent in its Permitted Discretion (with the form and substance of the Borrowing Base Report delivered on the Closing Date being deemed to be satisfactory to Agent).
“Borrowing Base Reporting Trigger Period” means the period
(a) commencing on the day that Adjusted Excess Availability for five (5) consecutive Business Days is less than the greater of (i)
$85,000,000 and (ii) 12.5% of the lesser of the Borrowing Base and the Maximum Revolver Amount on such day; and
(b) continuing until the
day
(i) Adjusted Excess Availability has been greater than the greater of (A) $85,000,000 and (B) 12.5% of the lesser of
the Borrowing Base and Maximum Revolver Amount on such day for a period of thirty (30) consecutive days and
(ii) no
Specified Event of Default has occurred and is continuing.
“Breaking Bulk Tax” means any excise, duty, or
similar Tax imposed by any Governmental Authority on goods at the point at which such goods are unloaded, unpacked, or otherwise separated from a bulk shipment for further distribution, sale, or consumption within the applicable jurisdiction,
including any such Tax levied upon the handling, processing, or redistribution of goods arriving in bulk form at a port, warehouse, or other point of entry.
“Business Day” means any day that is not a Saturday, Sunday, or other day on which the Federal Reserve Bank of New
York is closed.
“Capital Expenditures” means, with respect to any Person for any period, the amount of all
expenditures by such Person and its Subsidiaries during such period that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or financed, but excluding, without duplication
(a) with respect to the purchase price of assets that are purchased substantially contemporaneously with the
trade-in of existing assets during such period, the amount that the gross amount of such purchase price is reduced by the credit granted by the seller of such assets for the assets being traded in at such
time,
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(b) expenditures made during such period to consummate one or more Acquisitions,
(c) expenditures during such period that, pursuant to a written agreement, are reimbursed by a third Person (excluding any Loan Party or any of
its Affiliates) and
(d) capital expenditures in connection with turnarounds.
“Capital Lease” means a lease that is required to be capitalized for financial reporting purposes in accordance with
GAAP.
“Capitalized Lease Obligation” means that portion of the obligations under a Capital Lease that is
required to be capitalized in accordance with GAAP.
“Captive Insurer” means any Restricted Subsidiary of the
Par Borrower that is a captive insurance company established for the primary purpose of insuring any Loan Parties and their Restricted Subsidiaries and that is or will be subject to regulation as an insurance subsidiary.
“Cash Collateral” means cash and Cash Equivalents, and any interest or other income earned thereon, that is
delivered to Agent or the applicable Issuing Bank to Cash Collateralize any Obligations, and all interest, dividends, earnings and other proceeds relating thereto.
“Cash Collateralize” means, the delivery of cash to Agent, as security for the payment of Obligations, in an amount
equal to
(a) with respect to LC Obligations, 102.5% of the aggregate LC Obligations, and
(b) with respect to any other Obligations (including Bank Product Obligations), 102.5% of the amount of such Obligations.
“Cash Dominion Cure Event” means,
(a) with respect to any Cash Dominion Event arising from a Specified Event of Default, the date on which such Specified Event of Default no
longer exists, and
(b) with respect to any other Cash Dominion Event, Adjusted Excess Availability is equal to or greater than the greater
of (i) 10.0% of the lesser of the Borrowing Base and the Maximum Revolver Amount or (ii) $85,000,000 for a period of twenty (20) consecutive calendar days.
“Cash Dominion Event” means, any time either
(a) a Specified Event of Default has occurred and is continuing, or
(b) Adjusted Excess Availability is less than the greater of (i) 10.0% of the lesser of the Borrowing Base and the Maximum Revolver Amount and
(ii) $85,000,000 for five consecutive Business Days.
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“Cash Dominion Period” means, the period (a) commencing on
the day that a Cash Dominion Event occurs, and (b) continuing until a Cash Dominion Cure Event has occurred with respect to each then outstanding Cash Dominion Event.
“Cash Equivalents” means
(a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by
the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof,
(b) marketable
direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one (1) year from the date of acquisition thereof and, at the
time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating Group (“S&P”) or Moody’s Investors Service, Inc.
(“Moody’s”),
(c) commercial paper as to which the obligor thereunder is resident of the United States and
maturing no more than two-hundred and seventy (270) days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from
S&P or at least P-1 from Moody’s,
(d) certificates of deposit, time deposits, overnight
bank deposits or bankers’ acceptances maturing within one (1) year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia or any United States
branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $500,000,000,
(e) Deposit
Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States or any state thereof so long as the full amount
maintained with any such other bank is insured by the Federal Deposit Insurance Corporation,
(f) repurchase obligations of any commercial
bank satisfying the requirements of clause (d) of this definition or of any recognized securities dealer having combined capital and surplus of not less than $500,000,000, having a term of not more than seven (7) days, with respect to
securities satisfying the criteria in clauses (a) or (d) above,
(g) debt securities with maturities of
six (6) months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d) above and
(h) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses
(a) through (g) above.
“Cash Management Services” means obligations owed by the
Borrowers or any Guarantor (other than any Intermediation Subsidiaries) to any Lender or Affiliate of a Lender, securities intermediary (with respect to a Securities Account), or bank (with respect to a Deposit Account) in respect of any overdraft
and related liabilities arising from credit cards, treasury, depository and cash management services or any automated clearing house transfers of funds, controlled disbursement and any other banking products, services and arrangements (including any
cash sweeps or zero balance arrangements), except, in each case, to the extent constituting Intermediation Cash Management Services.
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“CFC” means a “controlled foreign corporation” (as
that term is defined in Section 957 of the IRC) or any direct or indirect subsidiary of a controlled foreign corporation.
“Change in Law” means the occurrence after the date of this Agreement of: (a) the adoption or effectiveness of
any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration, interpretation, implementation or application by any Governmental
Authority of any law, rule, regulation, guideline or treaty, (c) any new, or adjustment to, requirements prescribed by the Board of Governors for “Eurocurrency Liabilities” (as defined in Regulation D of the Board of
Governors), requirements imposed by the Federal Deposit Insurance Corporation, or similar requirements imposed by any domestic or foreign governmental authority or resulting from compliance by Agent or any Lender with any request or directive
(whether or not having the force of law) from any central bank or other Governmental Authority and related in any manner to SOFR, the Term SOFR Reference Rate or Term SOFR or (d) the making or issuance by any Governmental Authority of any
request, rule, guideline or directive, whether or not having the force of law; provided, that notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines or directives thereunder or issued in connection therewith, and (ii) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted or
issued.
“Change of Control” means the occurrence of any of the following:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any
employee benefit plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a “person” or “group” shall be deemed to have “beneficial ownership” of all Equity
Interests that such “person” or “group” has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of more
than fifty percent (50%) of the Equity Interests of Holdings (or any successor thereto permitted hereunder) entitled to vote in the election of members of the Board of Directors of Holdings (or the governing authority of such successor); or
(b) except as expressly permitted pursuant to a transaction expressly permitted under Sections 6.3 and 6.4 this
Agreement, Holdings (or any successor thereto) ceases to own, directly or indirectly, 100% of the total voting power of the voting Equity Interests of any Borrower.
“Closing Date” means the date of the satisfaction or waiver of the conditions set forth in
Section 3.1 of this Agreement.
“Collateral” means all assets and
interests in assets and proceeds thereof now owned or hereafter acquired by any Loan Party or its Subsidiaries in or upon which a Lien is granted by such Person in favor of Agent or the Lenders under any of the Loan Documents.
“Commitment” means, with respect to each Lender, its Revolver Commitment, and, with respect to all Lenders, their
Revolver Commitments, as the context requires, in each case as such Dollar amounts are set forth beside such Lender’s name under the applicable heading on Schedule C-1 to this Agreement or
in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of
Section 12.1 of this Agreement.
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“Commodity Account” means any commodity account (as that term is
defined in the UCC).
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as
amended from time to time, and any successor statute.
“Compliance Certificate” means a certificate
substantially in the form of Exhibit B-1 to this Agreement delivered by a financial officer that is an Authorized Person of the Par Borrower to Agent.
“Confidential Information” has the meaning specified therefor in
Section 16.9(a) of this Agreement.
“Conforming Changes” means,
with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of
“Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest
Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment,
conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.12(b)(ii) and other technical, administrative or operational matters) that the Agent
decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Agent (in consultation with the Par Borrower) in a manner substantially consistent with market practice
(or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent (in consultation with the Par Borrower) determines that no market practice for the administration of any such rate
exists, in such other manner of administration as the Agent (in consultation with the Par Borrower) decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Consolidated Cash Interest Expense” means Consolidated Interest Expense excluding any amount described in clause
(a) of the definition thereof and any amount not payable in cash (including any interest payable-in-kind).
“Consolidated Funded Indebtedness” shall mean, as of any date of determination, the aggregate amount (without
duplication) of all Funded Indebtedness of the Par Borrower and its Restricted Subsidiaries or of the Borrower Group, as applicable, as of such date, determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, for any period, the sum (determined without duplication) of the aggregate
gross interest expense for such period, whether paid or accrued, in each case solely to the extent treated as interest expense under GAAP:
(a) amortization of deferred financing fees, debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net payments (if any) pursuant to
any Hedge Agreements;
(b) any interest expense on Indebtedness of another Person that is guaranteed by the Par Borrower or any Restricted
Subsidiary or secured by a Lien on assets of the Par Borrower or any Restricted Subsidiary (whether or not such guarantee or Lien is called upon)
(c) capitalized interest; and
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(d) the portion of any payments or accruals under Capitalized Lease Obligations allocable to
interest expense, plus the portion of any payments or accruals under Synthetic Leases allocable to interest expense whether or not the same constitutes interest expense under GAAP,
in each case, excluding amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, less interest income for
such period.
“Consolidated Net Income” means, for any period, the net income (or loss) of the Par Borrower and
its Restricted Subsidiaries or the Borrower Group, as applicable, for such period, determined on a consolidated basis, without duplication, in accordance with GAAP and before any reduction in respect of preferred stock dividends;
provided, that in calculating Consolidated Net Income of the Par Borrower and its Restricted Subsidiaries or of the Borrower Group, as applicable, for any period, there shall be excluded:
(a) any net income (loss) of any Person if such Person is not the Par Borrower or a Restricted Subsidiary, except that the Par Borrower’s
or any Restricted Subsidiary’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Par
Borrower or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (b) below);
(b) solely for purposes of Section 6.7, any net income (loss) of any Restricted Subsidiary that
is not a Guarantor if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of similar distributions by such Restricted Subsidiary, directly or indirectly, to the Par Borrower by
operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than
(x) restrictions that have been waived or otherwise released, (y) restrictions pursuant to this Agreement and (z) restrictions in effect on the Closing Date with respect to a Restricted Subsidiary and other restrictions with respect
to such Restricted Subsidiary that taken as a whole are not materially less favorable to the Agent and the Lenders hereunder than such restrictions in effect on the Closing Date as determined by the Borrower in good faith), except that
(i) the Par Borrower’s equity in the net income of any such Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of any dividend or distribution that was or that could have been made by such Restricted Subsidiary during such period to the Par Borrower or another Restricted Subsidiary (subject, in the case
of a dividend that could have been made to another Restricted Subsidiary, to the limitation contained in this clause (b)) and
(ii) the net loss of such Restricted Subsidiary shall be included to the extent of the aggregate Investment of the Par Borrower
or any of its other Restricted Subsidiaries in such Restricted Subsidiary;
(c) (x) any gain or loss realized upon the sale, abandonment or
other disposition of any asset of the Par Borrower or any Restricted Subsidiary (including pursuant to any sale/leaseback transaction) that is not sold, abandoned or otherwise disposed of in the ordinary course of business (as determined in good
faith by the chief executive officer, the chief financial officer or other financial officer that is an Authorized Person of the Par Borrower) and
(y) any gain or loss realized upon the disposal, abandonment or discontinuation of operations constituting a material business
unit of the Par Borrower or any Restricted Subsidiary, and any income (loss) from disposed, abandoned or discontinued operations constituting a material business unit;
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(d) (x) any exceptional, extraordinary, unusual, infrequent or nonrecurring gain, loss or
charge and (y) any fees, expenses and charges associated with the transactions contemplated hereby occurring on the Closing Date and any acquisition, disposition, merger, amalgamation or consolidation;
(e) the cumulative effect of a change in accounting principles or a change as a result of the adoption or modification of accounting policies;
(f) all deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness or Hedge
Obligations or other derivative instruments;
(g) any unrealized gains or losses in respect of Hedge Obligations;
(h) any unrealized foreign currency transaction gains or losses in respect of Indebtedness of any Person denominated in a currency other than
the functional currency of such Person;
(i) any non-cash compensation charge arising from any
grant of stock, stock options or other equity-based awards, or any vesting or acceleration thereof;
(j) to the extent otherwise included
in Consolidated Net Income, any unrealized foreign currency translation or transaction gains or losses in respect of Indebtedness or other obligations of the Par Borrower or any Restricted Subsidiary owing to the Par Borrower or any Restricted
Subsidiary;
(k) any non-cash charge, expense or other impact attributable to application of the
purchase or recapitalization method of accounting (including the total amount of depreciation and amortization, cost of sales or other non-cash expense resulting from the
write-up of assets to the extent resulting from such purchase or recapitalization accounting adjustments);
(l) expenses related to the conversion or modification of various employee benefit programs, and
non-cash compensation related expenses;
(m) any fees, expenses, charges, premiums or other
payments, or any amortization thereof, in connection with the incurrence of Indebtedness (including such fees, expenses or charges related to the offering and issuance of debt securities, the syndication and incurrence of any Loans or Priority Fixed
Debt), Equity Issuance, refinancing transaction or amendment or modification of any debt instrument (including any amendment, refinancing or replacement or other modification of any Loans or Priority Fixed Debt) and including, in each case, any such
transaction consummated on or prior to the Closing Date and any such transaction undertaken but not completed, and any charges or non-recurring costs incurred during such period as a result of any such
transaction, in each case whether or not successful or consummated;
(n) any expenses, charges or losses to the extent covered by insurance
or indemnity and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount
is in fact reimbursed within 365 days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365-day
period); and
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(o) any impairment charge or asset write-off or
write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities and investments recorded using the equity method or as a result of a change in law
or regulation, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP.
“Consolidated
Total Net Indebtedness” means, at any date, the aggregate principal amount of Consolidated Funded Indebtedness (net of Unrestricted Cash as of such date).
“Control Agreement” means a control agreement, in form and substance reasonably satisfactory to Agent, executed and
delivered by a Loan Party or one of its Subsidiaries, Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account).
“Covenant Trigger Period” means, the period
(a) commencing on the day that Excess Availability is less than the greater of (i) $85,000,000 and (ii) 10.0% of the lesser of the Borrowing
Base and the Maximum Revolver Amount; and
(b) continuing until the day Excess Availability has been greater than the greater of (A)
$85,000,000 and (B) 10.0% of the lesser of the Borrowing Base and the Maximum Revolver Amount on such day for a period of thirty (30) consecutive calendar days.
“Covered Party” has the meaning specified therefor in
Section 16.18(a) of this Agreement.
“Credit Card Issuer” means,
any person who issues or whose members issue credit cards, including, without limitation, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International, Inc., Visa, U.S.A., Inc. or Visa
International and American Express, Discover, Diners Club, Carte Blanche and other non-bank credit or debit cards, including, without limitation, credit or debit cards issued by or through American Express
Travel Related Services Company, Inc., and Novus Services, Inc. and other issuers approved by the Agent.
“Credit Card
Processor” means, any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to any
Obligor’s sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer.
“Credit Card Receivables” means, any Receivable due to any Obligor arising out of the sale of Inventory in the
Ordinary Course of Business on the following credit cards: Visa, MasterCard, American Express, Diners Club, Discover and such other credit cards as the Agent shall approve from time to time, in each case which have been earned by performance by such
Obligor but not yet paid to such Obligor by the Credit Card Issuer or the Credit Card Processor, as applicable; provided that, in any event, “Credit Card Receivables” shall exclude Receivables due in
connection with proprietary credit cards.
“Debtor Relief Laws” means the Bankruptcy Code, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to
time in effect.
“Declined Proceeds” means, in connection with the offer of prepayment of Priority Fixed Debt or
Incremental Equivalent Debt, the amounts of which the lenders thereunder have declined to accept.
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“Default” means an event, condition, or default that, with the
giving of notice, the passage of time, or both, would be an Event of Default.
“Defaulting Lender” means any
Lender that
(a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were
required to be funded hereunder unless such Lender notifies Agent and the Par Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions
precedent, together with any applicable Default or Event of Default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Agent, Issuing Bank or any other Lender any other amount required to be paid by it
hereunder (including in respect of its participation in Letters of Credit) within two (2) Business Days of the date when due,
(b) has
notified the Par Borrower, Issuing Bank or Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such
Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable Default or Event of
Default, shall be specifically identified in such writing or public statement) cannot be satisfied),
(c) has failed, within three
(3) Business Days after written request by Agent or the Par Borrower, to confirm in writing to Agent and the Par Borrower that it will comply with its prospective funding obligations hereunder (provided, that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Agent and the Par Borrower), or
(d) has, or has a direct or indirect parent company that has, (i) become the subject of any Insolvency Proceeding, (ii) had appointed
for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or
any other state, provincial or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided, that a Lender shall not be a Defaulting
Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender
with immunity from the jurisdiction of courts within the United States, or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any
contracts or agreements made with such Lender.
Any determination by Agent that a Lender is a Defaulting Lender under any one or more of clauses
(a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Par Borrower, Issuing Bank
and each Lender.
“Defaulting Lender Rate” means (a) for the first three days from and after the date the
relevant payment is due, the Base Rate, and (b) thereafter, the interest rate then applicable to Revolving Loans that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto).
“Deposit Account” means any deposit account (as that term is defined in the UCC).
“Designated Account” means the Deposit Account of Par Borrower identified on Schedule D-1 to this Agreement (or such other Deposit Account of Par Borrower located at a Designated Account Bank that has been designated as such, in writing, by Par Borrower to Agent).
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“Designated Account Bank” has the meaning specified therefor in
Schedule D-1 to this Agreement (or such other bank that is located within the United States that has been designated as such, in writing, by Par Borrower to Agent).
“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by the Par Borrower or a Restricted Subsidiary in connection with a Disposition that is designated as “Designated Non-Cash
Consideration” pursuant to a certificate of an Authorized Person of the Par Borrower, setting forth the basis of such valuation, less the amount of cash and Cash Equivalents received in connection with a subsequent sale of such
Designated Non-Cash Consideration.
“Detached Renewable Identification
Number” means a Renewable Identification Number generated in accordance with RFS that is no longer associated with a specific gallon of biofuel to the extent such separation has occurred as provided in 40 CFR 80.1429(b), or such
successor rule or regulation that governs the separation of Renewable Identification Numbers from a volume of renewable fuel.
“Dilution Percent” means, the percent, determined for the Obligors’ most recent Fiscal Quarter, equal to
(a) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other dilutive items with respect to Accounts owing to the Obligors, divided by (b) gross sales of the Obligors.
“Dilution Reserve” means the aggregate amount of reserves, as established by Agent from time to time in its
Permitted Discretion, exercised in good faith, in an amount equal to the value of, without duplication, the Eligible Accounts Receivable, Eligible Investment Grade Receivables, Eligible Credit Card Receivables, Eligible L/C-Backed Receivables and Eligible Unbilled Accounts multiplied by 1.0% for each percentage point (or portion thereof) that the Obligors’ Dilution Percent exceeds 5.0%.
“Disposition” or “Dispose” means the sale, conveyance, transfer, license, lease,
assignment or other disposition (including any sale and leaseback transaction and any sale or issuance of Equity Interests in a Restricted Subsidiary, other than directors’ qualifying shares and shares issued to foreign nationals to the extent
required by applicable law) of any property by any Person, including any sale, conveyance, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith;
provided, that “Disposition” and “Dispose” shall not be deemed to include any issuance by the Par Borrower of any of its Equity Interests to another Person or a theft, loss,
physical destruction or damage, taking or similar event with respect to any property of any Person.
“Disqualified Equity
Interests” means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interests into which they are convertible or for which they are exchangeable), or upon the happening of any event or condition
(a) mature or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or
otherwise (except as a result of a change of control, casualty, condemnation event or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control, casualty, condemnation event or asset sale event shall be
subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments),
(b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part (except as a
result of a change of control, casualty, condemnation event or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control, casualty, condemnation event or asset sale event shall be subject to the prior
repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), or
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(c) are or become convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date;
provided that Equity Interests in any Person that are issued to any director or employee, or to any plan for the benefit of directors or
employees, shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by such Person or any of its subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such
employee’s termination, death or disability.
“Disqualified Institution” means, on any date,
(a) any Person designated by the Par Borrower as a “Disqualified Institution” by written notice delivered to Agent
prior to the date hereof or, if after the date hereof, subject to the written consent of Agent (not to be unreasonably withheld, conditioned or delayed),
(b) those Persons who are direct competitors of the Par Borrower identified in writing by Borrower to Agent from time to time, and
(c) in the case of each Person identified pursuant to clauses (a) and (b) above, any of their Affiliates that
are either (i) identified in writing by the Par Borrower from time to time, or (ii) clearly identifiable as Affiliates on the basis of such Affiliate’s name (other than, in the case of this clause (ii), Affiliates that
are bona fide debt funds);
provided, that no designation of any Person as a Disqualified Institution shall retroactively disqualify any
assignments or participations made to, or information provided to, such Person before it was designated as a Disqualified Institution, and such Person shall not be deemed to be a Disqualified Institution in respect of any assignments or
participations made to such Person prior to the date of such designation; provided, further, that “Disqualified Institutions” shall exclude any Person that Borrower has designated as no
longer being a “Disqualified Institution” by written notice delivered to Agent from time to time.
“Distribution” means any payment of a distribution, interest or dividend on any Equity Interest (other than payment-in-kind); or purchase, redemption or other acquisition or retirement for value of any Equity Interest.
“Dollars” or “$” means United States dollars.
“Domestic Subsidiary” means any Subsidiary of any Loan Party that is not a Foreign Subsidiary.
“Dominion Account” means, a special account established by Borrowers or other Obligors at Wells Fargo or another
bank acceptable to Agent, over which Agent has control (and either has or may obtain exclusive control for withdrawal purposes).
“Drawing Document” means any Letter of Credit or other document presented for purposes of drawing under any Letter
of Credit, including by electronic transmission such as SWIFT, electronic mail, facsimile or computer generated communication.
“EBITDA” means, for any period, the following determined on a consolidated basis, without duplication, for the Par
Borrower and its Restricted Subsidiaries or of the Borrower Group, as applicable, in accordance with GAAP:
(a) Consolidated Net Income for
such period, plus
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(b) the sum of the following, without duplication, to the extent (except with respect to
clauses (b)(xi) and (xii) below) deducted in determining Consolidated Net Income for such period:
(i) provision for all Taxes (whether or not paid, estimated or accrued) based on income, profits, revenue or capital (including
foreign income taxes, franchise taxes, excise, value added, sales and similar taxes, real estate or property taxes, and foreign withholding taxes (in each case, including any future taxes or levies that replace or are intended to be in lieu of taxes
and any penalties and interest related to taxes or arising from any tax examinations));
(ii) Interest Expense;
(iii) depreciation;
(iv) amortization (including amortization of goodwill and intangibles and amortization and
write-off of financing costs);
(v) any
non-cash charge, write-down, expense or loss (including as a result of any inventory valuation adjustment);
(vi) any expenses, charges or contingent or deferred payments (including indemnification payments, adjustments of purchase or
acquisition price, earn-outs, noncompetes, consulting payments and similar obligations) incurred in connection with any Disposition, Equity Issuance, Indebtedness or Investment, in each case permitted by this Agreement (whether or not consummated or
incurred, and including any offering or sale of Equity Interests to the extent the proceeds thereof were intended to be contributed to the equity capital of the Par Borrower or its Restricted Subsidiaries (or the Borrower Group, if applicable));
(vii) the amount of any loss attributable to non-controlling interests;
(viii) all deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness
or any Hedge Obligation or other derivative instruments;
(ix) the amount of any restructuring charge or reserve or non-recurring integration charges or reserves (including severance costs, contract termination costs, systems establishment costs, information technology costs, costs associated with office, facility and branch
openings, closings and consolidations (in the case of openings, incurred in connection with acquisitions and Investments) and relocation costs);
(x) any costs or expenses incurred by the Par Borrower or any Restricted Subsidiary pursuant to any management equity plan or
stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Par
Borrower or net cash proceeds of an issuance of Equity Interests of the Par Borrower (other than Disqualified Equity Interests);
(xi) proceeds from business interruption insurance (to the extent such proceeds are not reflected as revenue or income in
computing Consolidated Net Income and only to the extent the losses or other reduction of net income to which such proceeds are attributable are not otherwise added back in computing Consolidated Net Income); and
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(xii) the amount of
“run-rate” cost savings, operating expense reductions, operating enhancements and synergies projected by the Par Borrower in good faith to be realized as the result of (I) the transactions
contemplated hereby occurring on the Closing Date or (II) actions taken or to be taken on or prior to the date that is 24 months after the consummation of any operational change, Acquisition or Disposition, and in each case prior to or during
such period (calculated on a pro forma basis as though such cost savings, operating expense reductions, operating enhancements and synergies had been realized on the first day of such period; it being understood that
“run-rate” means the full recurring benefit for a period that is associated with any action taken or committed to be taken), net of the amount of actual benefits realized during such period from
such actions; provided that
(A) no cost savings, operating expense reductions, operating enhancements and synergies shall
be added pursuant to this clause (xii) to the extent duplicative of any expenses or charges otherwise added to Consolidated Net Income, whether through a pro forma adjustment or otherwise, for such period, and
(B) projected amounts (not yet realized) may no longer be added in calculating EBITDA pursuant to subclause
(II) of this clause (xii) to the extent occurring more than eight full fiscal quarters after the specified action taken in order to realize such projected cost savings, operating expense reductions, operating
enhancements and synergies.
For the purposes of calculating EBITDA for any period of four (4) consecutive fiscal quarters (each, a
“Reference Period”), if at any time during such Reference Period (and after the Closing Date), any Loan Party or any of its Restricted Subsidiaries shall have made an Acquisition, EBITDA for such Reference Period shall be,
at the Par Borrower’s option, calculated after giving pro forma effect thereto (including pro forma adjustments arising out of events which are directly attributable to such Acquisition and are factually supportable, in each case) or in such
other manner acceptable to Agent as if any such Acquisition or adjustment occurred on the first (1st) day of such Reference Period.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member
Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any
financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public
administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of EEA Financial Institution.
“Electronic Record” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C.
7006.
“Electronic Signature” has the meaning assigned to that term in, and shall be interpreted in accordance
with, 15 U.S.C. 7006.
“Eligible Account Obligor” means, on any date, any Person obligated to pay a Receivable
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(a) that is not a Borrower, a Subsidiary or an Affiliate of a Borrower;
(b) that has not filed for, and is not currently the object of, a proceeding relating to its bankruptcy, insolvency, reorganization, winding-up or composition or reorganization of debts; and
(c) that is in good standing with the
Borrowers and their Restricted Subsidiaries and satisfies all applicable credit standards of the Borrowers and their Restricted Subsidiaries.
“Eligible Accounts Receivable” means, on any date, all Receivables (other than Credit Card Receivables, Investment
Grade Receivables, and L/C Backed Receivables) denominated in Dollars payable by Eligible Account Obligors to an Obligor, net of any returns, rebates, discounts (calculated on the shortest terms), credits, other allowances and deductions, and Taxes
(including sales, state excise or other taxes) that have been or could be claimed by the Eligible Account Obligor (or are payable in the case of Taxes), that comply with each of the representations and warranties respecting eligible Accounts made in
the Loan Documents and that are not ineligible due to any of the following criteria (unless otherwise agreed by the Agent in its Permitted Discretion); provided, that such criteria may be revised from time to time by the Agent in its
Permitted Discretion by notifying the Administrative Borrower thereof in writing in order to address information with respect to the Obligors’ business or assets of which the Agent becomes aware after the Closing Date:
(a) billed Receivables and billed Asphalt Receivables that have not been paid by the date that is 60 days after the respective due dates
therefor and the date that is 120 days after the invoice date thereof;
(b) any Receivable subject to, or as to which there has been
asserted, any defense, dispute, claim, offset, counterclaim, deduction, recoupment, reserve, chargeback, credit or allowance, unless
(i) the applicable Eligible Account Obligor has entered into an agreement acceptable to the Agent to waive the foregoing
rights, or
(ii) with respect to any such Receivable, (A) the applicable Obligor’s obligation to pay for crude
oil constitutes the applicable setoff, and (B) the applicable Obligor’s payment obligation is fully secured by a Letter of Credit;
provided that, if any such defense, dispute, claim, offset or counterclaim is asserted with respect to such Receivable in an amount equal to a
sum certain, then such Receivable shall be an Eligible Account Receivable to the extent the face amount thereof exceeds such sum certain;
(c) all Receivables from an Eligible Account Obligor from whom a check, promissory note, draft, trade acceptance or other instrument for the
payment (in whole or in part) of money has been received, presented for payment and returned uncollected for any reason;
(d) all
Receivables from a sale to an Affiliate, or from a sale-or-return, sale-on-approval, or
otherwise subject to any repurchase or return arrangement;
(e) Receivables owed to an Obligor by an Eligible Account Obligor, the
aggregate unpaid balance of which exceeds twenty percent (20%) of the aggregate unpaid balance of all Receivables owed to the Obligors at such time by all of the Obligors’ Eligible Account Obligors (or such higher percentage as the Agent may
establish for the Eligible Account Obligor from time to time), but only to the extent of such excess;
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(f) any Receivable (i) in which the Agent, for the benefit of the Secured Parties, does
not have a valid and perfected first priority security interest or (ii) that is subject to any other Lien other than Liens permitted by clause (a) of the definition of “Permitted Liens”;
(g) any Receivable owing by an Eligible Account Obligor
(i) (A) which has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, is not Solvent or
(B) is subject to any Sanctions or on any specially designated nationals list maintained by OFAC, or
(ii) with
respect to which the Obligors are not able to bring suit or enforce remedies against such Eligible Account Obligor through judicial process;
(h) Receivables owing by an Eligible Account Obligor that is organized or has its principal offices outside the United States and Canada, or
with respect to which the portion of its assets in the United States and Canada is not material in relation to the size of the Receivables owed by such Eligible Account Obligor;
(i) Receivables with respect to which goods have been placed on consignment, guaranteed sale, bill-and-hold, or other terms by reason of which the payment by the Eligible Account Obligor may be conditional;
(j) Receivables with respect to which an invoice has not been sent prior to the date of any Borrowing Base Report in which such Receivables are
included for purposes of calculation of the Borrowing Base;
(k) Receivables which arise out of any contract or order which, by its
enforceable terms, forbids or makes void or unenforceable any assignment by the applicable Obligor to the Agent, for the benefit of the Secured Parties, of the Receivable arising with respect thereto;
(l) Receivables evidenced by any instrument, unless such instrument has been delivered to the Agent for the benefit of the Secured Parties;
(m) Receivables with respect to which the Agent believes, in its Permitted Discretion, that the collection thereof is impaired, that such
Receivables may not be paid by reason of the Eligible Account Obligor’s inability to pay or that are otherwise identified as unsatisfactory to the Agent;
(n) (i) Receivables owed by the government of the United States of America, Canada or any department, agency, public corporation, or other
instrumentality thereof that do not constitute Eligible Government Accounts Receivable and
(ii) Receivables (other than
Eligible Government Accounts Receivable) owed by any Governmental Authority other than the government of the United States of America or any department, agency, public corporation, or other instrumentality thereof, unless the applicable Obligor has
satisfied the requirements of Applicable Law, including delivering documentation satisfactory to the Agent, to effectuate the assignment of such Receivables and establish the right of the Agent to enforce payment directly against the Eligible
Account Obligor;
(o) Receivables
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(i) to which (A) the goods giving rise to it have not been delivered to
and accepted by the Eligible Account Obligor, or (B) the services giving rise to it have not been accepted by the Eligible Account Obligor, or
(ii) that otherwise do not represent a final sale;
(p) Receivables whose payment has been extended, or to which the Eligible Account Obligor has made a partial payment, or which arise from a
sale on a cash-on-delivery basis;
(q) Receivables which
represent a progress billing or retainage, or relate to services for which a performance, surety or completion bond or similar assurance has been issued;
(r) Receivables that include a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof; or
(s) Receivables for which (unless otherwise agreed by the Agent in its Permitted Discretion) not more than 50% of the aggregate value of the
Receivables of such Person have not been paid by the date that is 60 days after the respective due date therefor and the date that is 120 days after the invoice date thereof.
“Eligible Cash” means, cash or Cash Equivalents of an Obligor held in a segregated restricted Deposit Account or
Securities Account pledged to the Agent, for the benefit of the Secured Parties, as security for the Obligations, and in which the Agent, for the benefit of the Secured Parties, has a first priority perfected security interest (subject only to Liens
permitted under clause (r) of the definition of “Permitted Liens”), subject to a Control Agreement.
“Eligible Credit Card Receivables” means, on any date, all Credit Card Receivables denominated in Dollars, that have
been earned and represent the bona fide amounts due to an Obligor from a Credit Card Processor and/or Credit Card Issuer and that do not satisfy any of the following criteria (unless otherwise agreed by the Agent in its Permitted Discretion)
provided, that such criteria may be revised from time to time by the Agent in its Permitted Discretion by notifying the Administrative Borrower thereof in writing in order to address information with respect to the Obligors’
business or assets of which the Agent becomes aware after the Closing Date:
(a) any Credit Card Receivable that has been outstanding more
than five Business Days;
(b) any Credit Card Receivable owing by a Credit Card Issuer or a Credit Card Processor which has suspended or
ceased doing business, is liquidating, dissolving or winding up its affairs, or is not Solvent;
(c) any Credit Card Receivable that is not
the valid, legally enforceable obligation of the applicable Credit Card Processor or Credit Card Issuer with respect thereto;
(d) any
Credit Card Receivable (i) in which Agent, for the benefit of the Secured Parties, does not have a valid and perfected first priority security interest or (ii) that is subject to any other Lien other than Liens permitted by clause
(a) of the definition of “Permitted Liens”;
(e) any Credit Card Receivable that does not conform in
all material respects to all representations, warranties or other provisions in the Loan Documents or in the credit card agreements relating to such Credit Card Receivable;
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(f) any Credit Card Receivable that is subject to risk of offset, non-collection or not being processed due to unpaid and/or accrued Credit Card Processor fee balances, but only to the extent of such unpaid and/or accrued Credit Card Processor fee balances;
(g) any Credit Card Receivable evidenced by any instrument, unless such instrument has been delivered to the Agent for the benefit of the
Secured Parties; or
(h) any Credit Card Receivable with respect to which the Agent believes, in its Permitted Discretion, that the
collection thereof is impaired, that such Credit Card Receivable may not be paid by reason of the Credit Card Issuer’s or Credit Card Processor’s inability to pay or that are otherwise identified as unsatisfactory to the Agent in its
Permitted Discretion.
In determining the amount to be so included in the calculation of the value of an Eligible Credit Card Receivable,
the face amount thereof shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all customary fees and expenses in connection with any credit card arrangements and (ii) the aggregate
amount of all cash received by an Obligor in respect thereof but not yet applied by the applicable Obligor to reduce the amount of such Eligible Credit Card Receivable.
“Eligible Environmental Assets” means (a) low carbon fuel standard credits, clean fuel credits, emissions
allowances, offset credits and similar compliance instruments, in each case, issued under any federal or state law or program, including the Washington Climate Commitment Act, and owned by an Obligor, but only to the extent that a security interest
therein may be granted and perfected as applicable under Applicable Law; provided, that such assets may not be included in the Borrowing Base until the Agent has approved, in its Permitted Discretion, the inclusion of such assets in
the Borrowing Base, and (b) with respect to any Renewable Identification Number type as of any date of determination, the aggregate number of Detached Renewable Identification Numbers of such type owned by the Borrowers (collectively,
“Owned RINs”) at such time less (i) the number of Owned RINs that become invalid within 91 days after such date of determination and (ii) the number of Detached Renewable Identification Numbers of such type that
would be required to set off all renewable volume obligations of all Loan Parties (other than Intermediation Guarantors) under the RFS that are due within three (3) months after such date of determination; provided, that, such
Detached Renewable Identification Numbers satisfy the following additional criteria (which may be revised from time to time by Agent in its Permitted Discretion to address the results of any information with respect to Loan Parties’ business
or assets of which Agent becomes aware after the Closing Date, including any field examination or appraisal performed or received from time to time after the Closing Date, and other due diligence or information with respect to the Loan
Parties’ business or assets of which Agent becomes aware after the date hereof):
(a) such Detached Renewable Identification Numbers
are subject to (i) a valid and perfected first priority security interest in favor of Agent, for the benefit of the Secured Parties and (ii) no other Lien other than Liens permitted by clause (a) of the definition of
“Permitted Liens”; and
(b) all material requirements of Applicable Law (including, without limitation, RFS)
with respect to such Detached Renewable Identification Numbers have been satisfied.
“Eligible Exchange Agreement Positive
Balance” means, at any date of determination, the amount of Exchange Agreement Positive Balance provided, that such amount may be revised from time to time by the Agent in its Permitted Discretion by notifying the
Administrative Borrower thereof in writing in order to address information with respect to the Obligors’ business or assets of which the Agent becomes aware after the Closing Date. Without limiting the foregoing, the Eligible Exchange
Agreement Positive Balance, which shall be determined after
27
(a) adjusting the Exchange Agreement Positive Balance upward or downward, as applicable, to
account for discounts, allowances, rebates, credits and other adjustments in respect of such Exchange Agreement Positive Balances and
(b)
deducting from the Exchange Agreement Positive Balance the amount billed for or representing retainage, if any, by counterparties to Exchange Agreements.
The Eligible Exchange Agreement Positive Balance shall not include any Exchange Agreement Positive Balance
(a) to the extent that the Agent, for the benefit of the Secured Parties, does not have a valid, first priority perfected security interest in
the Exchange Agreement Positive Balance and in the Petroleum Inventory to which such Exchange Agreement Positive Balance relates, or
(b)
with respect to which
(i) the contract counterparty has disputed liability, or made any claim to any Obligor with respect
to such Exchange Agreement Positive Balance or with respect to any other Exchange Agreement Positive Balance due from such contract counterparty, other than for a minimal adjustment in the Ordinary Course of Business and in accordance with regular
commercial practice, or
(ii) any event of a type described in Section 7.4
or 7.5 has occurred with respect to the contract counterparty, or the contract counterparty has suspended normal business operations;
provided that the value of the Eligible Exchange Agreement Positive Balance shall be subject to reserves as determined by the Agent in its
Permitted Discretion.
“Eligible In-Transit Crude Oil” means, at any
date of determination, In-Transit Crude Oil owned by an Obligor that satisfies the criteria set forth in the definition of Eligible Refinery Hydrocarbon Inventory (other than the requirements as to location of
such inventory as set forth in clauses (b), (d) or (k) of such definition) and, unless otherwise agreed by the Agent, In-Transit Crude Oil shall not be Eligible In-Transit Crude Oil unless (i) the purchase price of such In-Transit Crude Oil has been paid or is supported by a Letter of Credit (or, with respect to In-Transit Crude Oil of Par Hawaii Refining, Par Hawaii Refining has received title to such In-Transit Crude Oil and the Agent shall have received such evidence thereof as it
may from time to time require) and (ii) with respect to In-Transit Crude Oil that is delivered via a vessel, barge, pipeline or rail, (A) the Agent shall have taken a Rent and Charges Reserve in its
Permitted Discretion or the Agent shall have received a third party agreement from the operator of the vessel, barge, pipeline or rail in which such In-Transit Crude Oil is transmitted in form satisfactory to
the Agent in its Permitted Discretion, (B) the Agent shall have received such other deliverables with respect thereto (including bills of lading) as reasonably requested in its Permitted Discretion, (C) the aggregate amount of Eligible In-Transit Crude Oil, taken together with all Eligible In-Transit Products, in each case, that is in transit on a vessel in the high seas outside the United States and Canada,
shall not exceed 20% of the total amount of the Borrowing Base at any time, and (D) no In-Transit Crude Oil that is in transit on a vessel in a High Risk Area (as determined on the date of the most
recently delivered Borrowing Base Report) shall constitute Eligible In-Transit Crude Oil. Eligible In-Transit Crude Oil shall be valued at market value determined in
accordance with the Valuation Method, and determined after, if required by the Agent in its Permitted Discretion, taking into account transportation and handling charges that affect the value thereof as determined by the Agent in its Permitted
Discretion.
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“Eligible In-Transit
Products” means, at any date of determination, In-Transit Products owned by an Obligor that satisfies the criteria set forth in the definition of Eligible Refinery Hydrocarbon Inventory (other
than the requirements as to location of such inventory as set forth in clauses (b), (d), or (k) of such definition), and, unless otherwise agreed by the Agent,
In-Transit Products shall not be Eligible In-Transit Products unless the Agent shall have taken Rent and Charges Reserve in its Permitted Discretion or the Agent has
received a third party agreement from the operator of the vessel, barge, pipeline or rail in which such In-Transit Products is transmitted in form satisfactory to the Agent in its Permitted Discretion;
provided, that (A) the Agent shall have received such other deliverables with respect thereto as reasonably requested in its Permitted Discretion, (B) the aggregate amount of Eligible
In-Transit Products, taken together with all Eligible In-Transit Crude Oil, in each case, that is in transit on a vessel in the high seas outside the United States and
Canada, shall not exceed 20% of the total amount of the Borrowing Base at any time, and (C) no In-Transit Product that is in transit on a vessel in a High Risk Area (as determined on the date of the most
recently delivered Borrowing Base Report) shall constitute Eligible In-Transit Product. Eligible In-Transit Products shall be valued at market value determined in
accordance with the Valuation Method, and determined after, if required by the Agent in its Permitted Discretion, taking into account transportation and handling charges that affect the value thereof as determined by the Agent in its Permitted
Discretion.
“Eligible Investment Grade Receivables” means, on any date, all Investment Grade Receivables
denominated in Dollars and payable to an Obligor that satisfy the criteria set forth in the definition of Eligible Accounts Receivable (other than by reason of being an Investment Grade Receivable), net of any returns, rebates, discounts (calculated
on the shortest terms), credits, other allowances and deductions, and Taxes (including sales, state excise or other taxes) that have been or could be claimed by the Eligible Account Obligor (or are payable in the case of Taxes).
“Eligible L/C-Backed Receivables” means, on any date, all L/C Backed
Receivables denominated in Dollars and payable to an Obligor that satisfy the criteria set forth in the definition of Eligible Accounts Receivable (other than the requirements set forth in clauses (c), (e),
(g)(i)(A) or (g)(ii), (j) and (m) of such definition and by reason of being an L/C Backed Receivable), net of any returns, rebates, discounts
(calculated on the shortest terms), credits, other allowances and deductions, and Taxes (including sales, state excise or other taxes) that have been or could be claimed by the Eligible Account Obligor (or are payable in the case of Taxes).
“Eligible Lubricants Inventory” means, at any date, the aggregate value (which shall be the lower of cost
(determined in accordance with GAAP on a first-in, first-out basis) or market value) of all Lubricants owned by an Obligor and that do not satisfy any of the following
criteria (unless otherwise agreed by the Agent in its Permitted Discretion); provided, that such criteria may be revised from time to time by the Agent in its Permitted Discretion by notifying the Administrative Borrower thereof in writing in
order to address information with respect to the Obligors’ business or assets of which the Agent becomes aware after the Closing Date:
(a) Lubricants (i) in which Agent, for the benefit of the Secured Parties, does not have a valid and perfected first priority security
interest or (ii) that is subject to any other Lien other than Liens permitted by clause (a) of the definition of “Permitted Liens”;
(b) Lubricants
(i) located on premises that are not owned by an Obligor or a Restricted Subsidiary, or held by a bailee or otherwise subject
to any third party interest, with respect to which any landlord’s waiver or other third party agreement in form and substance satisfactory to, the Agent shall not have been furnished (except where an appropriate Rent and Charges Reserve has
been established), or
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(ii) commingled with any product other than Lubricants that are owned by
another Obligor and in which Agent, for the benefit of the Secured Parties, has a valid and perfected first priority security interest;
(c) Lubricants of any Obligor with respect to which any event described in Section 7.4 or
7.5 shall have occurred and be continuing;
(d) Lubricants held on consignment, or subject to any deposit or downpayment;
(e) Lubricants located outside the United States;
(f) Lubricants consigned to any Person;
(g) Lubricants that are subject to a warehouse receipt or negotiable document;
(h) Lubricants that are subject to a license or other arrangement that restricts the Obligors’ or the Agent’s right to dispose of
such Lubricants, unless the Agent has received an appropriate lien waiver in form and substance satisfactory to the Agent;
(i) Lubricants
that are not located at terminals, storage tanks and lines related thereto (including line fills but excluding basic sediment and water and slop oil), bulk plants, service stations and cardlocks, in each case owned or leased and operated by the
Obligors or any Restricted Subsidiary (and, in the case of leased locations, with respect to which a landlord’s waiver or agreement has not been provided if requested by the Agent as set forth in clause (b) of this
definition (except where an appropriate Rent and Charges Reserve has been established)) or at such other locations as may be approved from time to time by the Agent; or
(j) Lubricants that are obsolete, unsalable, damaged or otherwise unfit for sale or further processing in the Ordinary Course of Business or
otherwise unsatisfactory to the Agent in its Permitted Discretion.
“Eligible Merchandise Inventory” means, at
any date, the aggregate value (which shall be the lower of cost (determined in accordance with GAAP on a first-in, first-out basis) or market value) of all Merchandise
Inventory owned by an Obligor and that do not satisfy any of the following criteria (unless otherwise agreed by the Agent in its Permitted Discretion); provided, that such criteria may be revised from time to time by the Agent
in its Permitted Discretion by notifying the Administrative Borrower thereof in writing in order to address information with respect to the Obligors’ business or assets of which the Agent becomes aware after the Closing Date:
(a) (i) in which Agent, for the benefit of the Secured Parties, does not have a valid and perfected first priority security interest or
(ii) that is subject to any other Lien other than Liens permitted by clause (a) of the definition of “Permitted Liens”;
(b) (i) located on premises that are not owned by an Obligor or any Restricted Subsidiary (other than at service stations leased by and
operated by an Obligor or any Restricted Subsidiary (other than an Intermediation Subsidiary)) or held by a bailee or otherwise subject to any third party interest with respect to which a landlord’s waiver or other third party agreement in
form and substance satisfactory to, the Agent, shall not have been furnished (except where an appropriate Rent and Charges Reserve has been established), or
30
(ii) commingled with any product other than Merchandise Inventory that is
owned by an Obligor and in which Agent, for the benefit of the Secured Parties, has a valid and perfected first priority security interest;
(c) attributable to any Obligor with respect to which any event described in Section 7.4 or
7.5 shall have occurred and be continuing;
(d) in transit from vendors or suppliers;
(e) held on consignment, or subject to any deposit or downpayment;
(f) located outside the United States;
(g) consigned to any Person;
(h)
subject to a license or other arrangement that restricts the Obligors’ or the Agent’s right to dispose of such Merchandise Inventory, unless the Agent has received an appropriate lien waiver in form and substance satisfactory to the
Agent; or
(i) that was acquired from a Person subject to any Sanctions or on any specially designated nationals list maintained by OFAC,
is obsolete, unsalable, damaged or otherwise unfit for sale in the Ordinary Course of Business or otherwise unsatisfactory to the Agent in its Permitted Discretion.
“Eligible Petroleum Asphalt Inventory” means Eligible Refinery Hydrocarbon Inventory that consists of Asphalt.
“Eligible Receivables” means Eligible Accounts Receivable, Eligible Investment Grade Receivables, Eligible Credit
Card Receivables and Eligible L/C-Backed Receivables.
“Eligible Refinery Hydrocarbon
Inventory” means, at any date, the aggregate market value, as determined in accordance with the Valuation Method, of all Petroleum Inventory owned by an Obligor and that do not satisfy any of the following criteria (unless otherwise
agreed by the Agent in its Permitted Discretion); provided, that such criteria may be revised from time to time by the Agent in its Permitted Discretion by notifying the Administrative Borrower thereof in writing in order to
address information with respect to the Obligors’ business or assets of which the Agent becomes aware after the Closing Date:
(a)
(i) in which Agent, for the benefit of the Secured Parties, does not have a valid and perfected first priority security interest (except as such priority may be subject to statutory Liens securing First Purchase Crude Payables that purport to have
priority over other secured creditors) or
(ii) that is subject to any other Lien other than (x) Liens permitted by
clause (a) of the definition of “Permitted Liens”, or (y) statutory Liens securing First Purchase Crude Payables;
(b) (i) located on premises that are not (x) owned or leased (and, if leased, subject to a landlord’s waiver or other third party
agreement in form and substance satisfactory to the Agent or for which an appropriate Rent and Charges Reserve has been established in an aggregate amount not to exceed six months’ rent under such lease) by an Obligor or any Restricted
Subsidiary, including jet fuel tanks stored at the Hawaii Fueling Facilities Corporation terminal located in Hawaii (other than (A) Petroleum
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Inventory at service stations leased by and operated by an Obligor or any Restricted Subsidiary (other than an Intermediation Subsidiary) and (B) Petroleum Inventory at cardlocks operated by
an Obligor or one of the any Restricted Subsidiaries (other than an Intermediation Subsidiary)) or (y) held by a bailee or otherwise subject to any third party interest with respect to which a landlord’s waiver or other third party
agreement in form and substance satisfactory to, the Agent shall not have been furnished (except where an appropriate Rent and Charges Reserve has been established), or
(ii) commingled with any product other than Petroleum Inventory that is owned by another Obligor and in which Agent, for the
benefit of the Secured Parties, has a valid and perfected first priority security interest;
(c) attributable to any Obligor with respect
to which any event described in Section 7.4 or 7.5 shall have occurred and be continuing;
(d) in transit from vendors or suppliers;
(e) held on consignment or subject to any deposit or downpayment;
(f) located outside the United States;
(g) consigned to any Person;
(h)
subject to a warehouse receipt or negotiable document;
(i) subject to a license or other arrangement that restricts the Obligors’ or
the Agent’s right to dispose of such Petroleum Inventory, unless the Agent has received an appropriate lien waiver in form and substance satisfactory to the Agent;
(j) consisting of, or commingled with, Hydrocarbons subject to a Structured Hydrocarbon Supply Arrangement;
(k) not located at the Refineries or at terminals, field production tanks, storage tanks and lines related thereto (including line fills but
excluding basic sediment and water and slop oil), bulk plants, service stations and cardlocks, in each case, owned or leased (and, if leased, subject to a landlord’s waiver or other third party agreement in form and substance satisfactory to
the Agent or for which an appropriate Rent and Charges Reserve has been established in an aggregate amount not to exceed six months’ rent under such lease) and operated by an Obligor or any Restricted Subsidiary or at such other locations as
may be approved from time to time by the Agent; or
(l) that is obsolete, unsalable, damaged or otherwise unfit for sale or further
processing in the Ordinary Course of Business or otherwise unsatisfactory to the Agent in its Permitted Discretion.
“Eligible
Tax Receivables” means, on any date, all Receivables payable to an Obligor representing refunds, credits, or recoverable amounts of Breaking Bulk Taxes and any goods and services taxes (GST), harmonized sales taxes (HST), or similar
value-added taxes recoverable from the government of Canada owed by the government of the United States of America, the government of Canada, any state agency, or any department, agency, public corporation, or other instrumentality thereof that are
not ineligible due to any of the following criteria (unless otherwise agreed by the Agent in its Permitted Discretion); provided, that (A) the aggregate amount of Eligible Tax Receivables (other than Eligible Tax
Receivables attributable to Breaking Bulk Taxes) shall not exceed $15,000,000 in the aggregate at any time and (B) such criteria may be revised from time to time by the Agent in its Permitted Discretion by notifying the Administrative Borrower
thereof in writing in order to address information with respect to the Obligors’ business or assets of which the Agent becomes aware after the Closing Date:
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(a) any Receivable (i) that does not comply with the acknowledgement requirements set
forth in the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq.) or (ii) for which any steps necessary to perfect the Agent’s Liens therein and to give the Agent the right to collect such accounts have not
been complied with to the Agent’s satisfaction;
(b) any Receivable subject to, or as to which there has been asserted, any defense,
dispute, claim, offset, counterclaim, deduction, recoupment, reserve, chargeback, credit or allowance;
(c) any Receivable not duly and
timely filed or claimed with the government of the United States of America or any department, agency, public corporation, or other instrumentality thereof;
(d) any Receivable arising from or attributable to a tax return, refund claim, or other filing that was not filed within the statute of
limitations of any Applicable Law;
(e) any Receivable as to which the government of the United States of America or any department,
agency, public corporation, or other instrumentality thereof has asserted any defense to payment or issued any notice of deficiency, proposed adjustment, or similar communication that would reasonably be expected to reduce or eliminate the amount of
such Receivable;
(f) any Receivable that has been sold, assigned, transferred, pledged, or otherwise conveyed (other than to the Agent for
the benefit of the Secured Parties);
(g) any Receivable is not supported by a copy of the applicable tax return, refund claim, invoice,
assessment, or other third-party documentation evidencing the existence and amount of such Receivable, in each case in form and substance reasonably satisfactory to the Agent; and
(h) the amount of such Receivable is not net of all federal, state, and local tax liabilities, assessments, deficiencies, penalties, interest,
and other amounts then due or reasonably expected to become due by the Obligor to the government of the United States of America or the applicable department, agency, public corporation, or other instrumentality thereof in connection with such
Receivable, such that only the net amount (if positive) remaining after deduction of all such liabilities shall be treated as an Eligible Tax Receivable.
“Eligible Transferee” means (a) any Lender, (b) any Affiliate of any Lender, (c) any Related Fund of
any Lender and (d) any other Person, other than, in each case, a natural Person, a Defaulting Lender, Holdings, a Loan Party, any Subsidiary of a Loan Party, any Affiliate of a Loan Party or a Disqualified Institution.
“Eligible Government Accounts Receivable” means (i) Eligible Accounts Receivable owed by the government of the
United States of America, or any department, agency, public corporation, or other instrumentality thereof; provided that, unless otherwise permitted by the Agent in its Permitted Discretion, the requirement of acknowledgement by the
government set forth in the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq.), and any steps necessary to perfect the Agent’s Liens therein and to give the Agent the right to collect such accounts, have been
complied with to the Agent’s satisfaction with respect to such accounts and (ii) Eligible Tax Receivables.
“Eligible Unbilled Accounts” means, on any date, all Receivables that
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(a) would be Eligible Accounts Receivable but for the fact that they remain unbilled and are
not the subject of an invoice, are payable by any Persons listed on Schedule F to an Obligor and are not deemed in writing from the Agent (in its Permitted Discretion) to the Administrative Borrower to not be Eligible Unbilled
Accounts, and
(b) are a right to payment for the sale of Inventory and not then included in the determination of any other component of
the Borrowing Base;
provided that, Eligible Unbilled Accounts shall not include any such Receivables that are unbilled more than 15 days
after the month in which such Receivables accrued.
“Employee Benefit Plan” means any employee benefit plan
within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, (a) that is or within the preceding six (6) years has been sponsored, maintained or contributed to by any Loan Party, Subsidiary or ERISA Affiliate or
(b) to which any Loan Party, Subsidiary or ERISA Affiliate has, or has had at any time within the preceding six (6) years, any liability, contingent or otherwise.
“Environmental Action” means any written complaint, summons, citation, notice, directive, order, claim, litigation,
investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority, or any third party involving actual or alleged violations of Environmental Laws or Releases of Hazardous
Materials (a) from or onto any assets, properties, or businesses of the Par Borrower, any Subsidiary of the Par Borrower, or any of their predecessors in interest, (b) from or onto adjoining properties or businesses, or (c) from or
onto any facilities which received Hazardous Materials generated by the Par Borrower, any Subsidiary of the Par Borrower, or any of their predecessors in interest.
“Environmental Law” means any applicable federal, state, provincial, foreign or local statute, law, rule,
regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any applicable and enforceable judicial or administrative
interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on any Loan Party or its Subsidiaries, relating to the environment, natural resources, human health or safety (to
the extent related to exposure to Hazardous Materials), or the generation, management, transportation, disposal, or Release or threatened Release of Hazardous Materials, in each case as amended from time to time.
“Environmental Liabilities” means all liabilities, monetary obligations, losses, damages, costs and expenses
(including all reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, or Remedial
Action required, by any Governmental Authority or any third party, and which relate to any Environmental Action.
“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.
“Environmental Permit” means any permit, registration, license, notice, approval, consent, exemption, waiver,
variance, or other authorization required under or issued pursuant to any Environmental Law.
“Equity Interests”
means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents (regardless of how designated) of or in such Person, whether voting or nonvoting, including capital stock (or other ownership or
profit interests or units), preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange
Act) (other than any debt security which by its terms is convertible at the option of the holder into Equity Interests, to the extent such holder has not so converted such debt security).
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“Equity Issuance” means (a) any issuance by the Par Borrower
of shares of its Equity Interests to any Person that is not a Loan Party or any Restricted Subsidiary thereof (including, without limitation, in connection with the exercise of options or warrants or the conversion of any debt securities to equity)
and (b) any capital contribution from any Person that is not a Loan Party into any Loan Party or any Restricted Subsidiary thereof. The term “Equity Issuance” shall not include (A) any Disposition or (B) any
issuance or incurrence of any Indebtedness for borrowed money by any Loan Party or any of its Restricted Subsidiaries.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statutes, and all
regulations and guidance promulgated thereunder. Any reference to a specific section of ERISA shall be deemed to be a reference to such section of ERISA and any successor statutes, and all regulations and guidance promulgated thereunder.
“ERISA Affiliate” means (a) any Person subject to ERISA whose employees are treated as employed by the same
employer as the employees of any Loan Party or its Subsidiaries under IRC Section 414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by the same employer as the employees of any Loan Party or its
Subsidiaries under IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to ERISA that is a member of an affiliated service group of which any Loan Party or any of its
Subsidiaries is a member under IRC Section 414(m) or (d) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that is a party to an arrangement with any Loan Party or any of its
Subsidiaries and whose employees are aggregated with the employees of such Loan Party or its Subsidiaries under IRC Section 414(o).
“ERISA Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to
Title I of ERISA, (b) a “plan” as defined in Section 4975 of the IRC or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of
the IRC) the assets of any such “employee benefit plan” or “plan.”
“Erroneous Payment”
has the meaning specified therefor in Section 14.19(a) of this Agreement.
“Erroneous Payment Deficiency Assignment” has the meaning specified therefor in
Section 14.19(d) of this Agreement.
“Erroneous Payment Impacted
Loans” has the meaning specified therefor in Section 14.19(d) of this Agreement.
“Erroneous Payment Return Deficiency” has the meaning specified therefor in
Section 14.19(d) of this Agreement.
“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect
from time to time.
“Event of Default” has the meaning specified therefor in
Section 7 of this Agreement.
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“Excess Availability” means, as of any time of determination, the
amount equal to (a) the Line Cap minus (b) the Revolver Usage.
“Exchange Act” means the Securities
Exchange Act of 1934, as in effect from time to time.
“Exchange Agreement” means, an agreement under which an
Obligor undertakes to deliver goods on behalf of an unaffiliated Person to a customer of such Person in exchange for such Person’s delivery of similar goods to a customer of such Obligor.
“Exchange Agreement Positive Balance” means, at any date of determination, with respect to an Obligor that is a
party to an Exchange Agreement, the amount of the positive balance, valued on a mark-to-market basis in accordance with the Valuation Method, of Petroleum Inventory that
such Obligor has the right to receive in the Ordinary Course of Business from a counterparty to such Exchange Agreement (other than an Affiliate of such Borrower or another party determined by the Agent in its Permitted Discretion to be
unacceptable) or money owing to such Borrower in connection with an exchange of Petroleum Inventory under such Exchange Agreement, net of any offsets or counterclaims.
“Excluded Accounts” has the meaning specified therefor in
Section 5.14(c)(i)(A) of this Agreement.
“Excluded Asset” means
(a) any equipment, aircraft, motor vehicle or other assets in which a lien can only be perfected by action with respect to a certificate
of title, and any accessions thereto;
(b) any Real Property;
(c) any property to the extent that the pledge thereof or granting of a Lien thereon is prohibited by Applicable Law (including the requirement
to obtain consent of any Governmental Authority), in each case, only to the extent and for so long as the terms of such Applicable Law applicable thereto validly prohibit, or require the consent of any Governmental Authority which has not been
obtained as a condition to the creation by such Loan Party of, a security interest in such property in favor of the Agent (after giving effect to Sections 9-406(d),
9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other Applicable Law (including the
Bankruptcy Code or any other Debtor Relief Law));
(d) any Equity Interests;
(e) any permit, lease, license, contract or other agreement to which any Loan Party is a party or any property owned by any Loan Party on the
date hereof or hereafter acquired that (i) is subject to a purchase money Lien or Capital Lease or similar arrangement permitted to be incurred pursuant to the provisions of this Agreement or (ii) is subject to Liens described in clause
(y) of the definition of “Permitted Liens”; provided, that, in the case of sub-clause (ii), such permit, lease, license, contract or other agreement
or property shall not be property that in the absence of this clause (e) would have been Collateral; and, in each case, such Loan Party’s rights and interests therein, to the extent that the grant of a Lien in respect
thereof under the Guaranty and Security Agreement
(A) shall constitute or result in a breach of, a default under, an
invalidation of, a termination of, or the unenforceability of any right of such Loan Party under, such permit, lease, license, contract or other agreement or the agreement governing such purchase money Lien, Capital Lease or similar arrangement or
assets subject to Liens described in clause (y) of the definition of “Permitted Liens” or
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(B) requires the consent of any Person other than any Loan Party or any
Affiliate thereof with respect to such permit, lease, license, contract or other agreement or such agreement governing such purchase money Lien, Capital Lease or similar arrangement or is subject to Liens described in clause
(y) of the definition of “Permitted Liens”, which consent has not been obtained as a condition the creation of any other Lien on such property or creates a right of termination in favor of any Person other than
any Loan Party or any Affiliate thereof (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other Applicable Law (including the Bankruptcy Code or any other Debtor Relief Law));
(f) any governmental licenses, state, provincial or local franchises, charters or authorizations (other than cash proceeds thereof, Renewable
Identification Numbers or biodiesel credits), the pledge or granting of a security interest in which would violate or be restricted or prohibited thereby or by Applicable Law or would require the consent or approval of a third party, in each case,
unless such restrictions are rendered ineffective under the UCC or other Applicable Law of any applicable jurisdiction; provided, however, that the Collateral shall include (and the definition of Excluded Assets
shall not then include) any portion of such governmental licenses, state, provincial or local franchises, charters or authorizations immediately at such time as the contractual or legal provisions referred to above shall no longer be applicable or
such required consent shall have been received;
(g) Intellectual Property (other than, for the avoidance of doubt, any license or
authorization to use Intellectual Property granted to the Agent (or any other Secured Party) in the Intercreditor Agreements, the Guaranty and Security Agreement or any other Security Document);
(h) any acquired property (including property acquired through acquisition of, or merger or amalgamation with, another Person) acquired in
connection with a transaction otherwise permitted by this Agreement if at the time of such acquisition, the granting of a Lien therein or the pledge thereof is prohibited by any contract or other agreement to the extent and for so long as such
contract or other agreement prohibits such Lien or pledge (provided, that such contract or agreement was not entered into in contemplation thereof);
(i) Intermediation Collateral;
(j) pledges and security interests prohibited or restricted by Applicable Law (including any requirement to obtain the consent of any
Governmental Authority, unless such consent has been obtained (it being understood that there shall be no obligation to obtain such consent)) (after giving effect to the applicable anti-assignment provisions of the UCC, the assignment of which is
expressly deemed effective under the UCC or other Applicable Law notwithstanding such prohibition);
(k) any assets (including Equity
Interests) owned by a Foreign Subsidiary or an Unrestricted Subsidiary;
(l) any assets (including Equity Interests) owned by a CFC, a
FSHCO or a direct or indirect Subsidiary of a CFC or FSHCO;
(m) environmental credits to the extent they do not otherwise qualify as
Eligible Environmental Assets;
(n) [reserved];
(o) letter-of-credit rights to the extent not perfected by the
filing of a UCC financing statement;
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(p) Excluded Accounts;
(q) any contract, permit or license to the extent that the pledge thereof or granting of a Lien thereon is prohibited under the terms of such
contract, permit or license by any contractual obligation in existence (x) on the Closing Date or (y) at the time of the acquisition of a Person after the Closing Date (after giving effect to
Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor
provision or provisions) the UCC), in each case, solely to the extent such prohibition was not entered into in contemplation of such acquisition; and
(r) other property to the extent the Agent determines that the cost of obtaining or perfecting a lien or security interest therein is excessive
in relation to the benefit afforded to the Lenders thereby;
provided, that (x) Excluded Assets shall not include the right to receive
any proceeds from any Excluded Asset, the right to receive any payment of money (including, without limitation, general intangibles) or any other rights referred to in Sections 9-406(f), 9-407(a) or 9-408(a) of the UCC (or any successor provision or provisions) or any proceeds, substitutions or replacements of any Excluded Asset unless such proceeds,
substitutions or replacements thereof would otherwise constitute Excluded Assets, and (y) notwithstanding anything to the contrary contained in any Loan Document, no Loan Party shall be required to take any action under the law of any non-U.S. jurisdiction to create or perfect a security interest in any assets.
“Excluded
Intermediation Account” means any Deposit Account or other account established by any Intermediation Subsidiary or PHR, in each case, solely in connection with an Intermediation Facility at an Intermediation Counterparty (or a bank
acceptable to an Intermediation Counterparty), over which such Intermediation Counterparty has control (and either has or may obtain exclusive control for withdrawal purposes) and which, in each case, is used exclusively to hold PHR Margin and
Intermediation Collateral with respect to such Intermediation Facility and does not contain any Collateral.
“Excluded
Refinery” means (a) any Refinery that is a non-core asset that is acquired after the Closing Date in connection with the acquisition of other assets useful in the business of the Borrower
and its Restricted Subsidiaries and (b) any Refinery acquired after the Closing Date (i) solely with the proceeds of a substantially concurrent sale of Equity Interests of Holdings or (ii) solely in exchange for Equity Interests of
Holdings (or solely with a combination of the consideration described in clauses (i) and (ii) and, in the case of clauses (i) and (ii), contributed by Holdings to the Par Borrower or any of its Restricted Subsidiaries).
“Excluded Subsidiary” means
(a) any non-wholly owned Restricted Subsidiary,
(b) any Immaterial Subsidiary,
(c) any Foreign Subsidiary,
(d)
any Domestic Subsidiary of a Foreign Subsidiary,
(e) any Captive Insurer,
(f) any special purpose entity reasonably required to be used for the incurrence of purchase money or Capital Lease financings permitted
hereunder,
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(g) any Restricted Subsidiary that (i) is prohibited by (A) any Applicable Law or
(B) any contractual obligation (other than any contractual obligation in favor of a Loan Party or Affiliate thereof) from Guaranteeing the Obligations (provided that in the case of the foregoing clause
(B), such contractual obligation exists on the Closing Date or at the time such Restricted Subsidiary becomes a Subsidiary and shall not have been entered into in contemplation of such Restricted Subsidiary’s becoming a
Subsidiary) or (ii) would require a consent, approval, license or authorization (including any regulatory consent, approval, license or authorization) of any Governmental Authority to provide a Guarantee of the Obligations (unless such consent,
approval, license or authorization is received),
(h) any CFC or FSHCO;
(i) any Subsidiary of Holdings (including to the extent that the burden or cost (including, without limitation, any potential tax liability) of
obtaining a guarantee outweighs the benefits afforded thereby) as reasonably determined by the Agent and the Borrowers; or
(j) any
Unrestricted Subsidiary;
provided, that no Subsidiary shall constitute an Excluded Subsidiary if such Subsidiary is a guarantor under any
Priority Fixed Debt.
“Excluded Swap Obligation” means, with respect to any Loan Party or any Restricted
Subsidiary, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party of (including by virtue of the joint and several liability provisions of Section 2.15), or
the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the
application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder
at the time the guaranty of such Loan Party or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply
only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be
withheld or deducted from a payment to a Recipient: (i) Taxes imposed on or measured by net income or net profits (however denominated), franchise Taxes, and branch profits Taxes, in each case (A) imposed as a result of such Recipient
being organized under the laws of, or having its principal office, or in the case of any Lender, its applicable lending office, located in the jurisdiction imposing such Tax (or any political subdivision thereof) or (B) that are Other
Connection Taxes; (ii) Taxes attributable to such Recipient’s failure to comply with the requirements of Section 2.18(g), (iii) in the case of a Lender, any United States federal withholding
Taxes imposed on amounts payable to or for the account of a Lender with respect to an applicable interest in a Loan, Commitment, Letter of Credit or otherwise under a Loan Document pursuant to a law in effect on the date on which (A) such
Lender acquires such interest in the Loan, Commitment, Letter of Credit (other than pursuant to an assignment request by a Borrower pursuant to Section 13.3) or (B) such Lender changes its
lending office, except in each case, to the extent that, pursuant to Section 2.18, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender
became a party hereto or to such Lender immediately before it changed its lending office and (iv) any withholding Taxes imposed under FATCA.
“Existing Agreement” has the meaning set forth in the recitals.
“Existing Intermediation Documents” has the meaning specified thereof in
Section 4.36.
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“Existing Letters of Credit” means those letters of credit
described on Schedule E-1 to this Agreement.
“Extended Revolver
Commitment” has the meaning specified therefor in Section 2.16(a) of this Agreement.
“Extending Revolver Lender” has the meaning specified therefor in
Section 2.16(a) of this Agreement.
“Extension” has the meaning
specified therefor in Section 2.16(a) of this Agreement.
“Extension
Offer” has the meaning specified therefor in Section 2.16(a) of this Agreement.
“Extraordinary Advances” has the meaning specified therefor in
Section 2.3(d)(iii) of this Agreement.
“FATCA” means Sections
1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and (a) any current or future regulations or official
interpretations thereof, (b) any agreements entered into pursuant to Section 1471(b)(1) of the IRC, and (c) any intergovernmental agreement, treaty or convention entered into by the United States and any fiscal or regulatory
legislation, rules, or practices adopted pursuant to any such intergovernmental agreement, treaty or convention entered into in connection therewith.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal to, for each day during such
period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, 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 such day on such transactions received by Agent from three Federal funds brokers of recognized standing selected by it (and, if any such rate is below zero, then the
rate determined pursuant to this definition shall be deemed to be zero).
“Fee Letter” means that certain fee
letter, dated as of the date hereof, among the Borrowers and Agent.
“Feedstocks” means, all crude oil,
natural gas liquids, and other Hydrocarbons, and ethanol, renewable fuels, and renewable feedstocks, in so far as such Feedstocks are used or useful as fuel or in the manufacture, processing, refining, or blending of Intermediate Products and
Refined Products at one or more Refineries.
“Financial Fixed Charge Coverage Ratio” means, the ratio,
determined on a consolidated basis for Par Borrower and its Restricted Subsidiaries for the most recently completed four-Fiscal Quarter or, during a Financial Reporting Trigger Period and Covenant Trigger Period, for the most recently completed 12-month period, of (a) EBITDA minus Unfinanced Capital Expenditures, minus cash income and capital taxes paid during such period (net of cash tax refunds received during such period) plus, without duplication,
the excess of any cash income and capital tax refunds received during such period over all cash income and capital taxes paid in cash during such period, to (b) Financial Fixed Charges.
40
In addition, for purposes of calculating the Financial Fixed Charge Coverage Ratio:
(a) acquisitions that have been made by the Par Borrower or any of its Restricted Subsidiaries, including through mergers, amalgamations or
consolidations, or any Person or any of its Restricted Subsidiaries acquired by the Par Borrower or any of its Restricted Subsidiaries, and including all related financing transactions and including increases in ownership of Restricted Subsidiaries,
during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date, or that are to be made on the Calculation Date, will be given pro forma effect as if they had occurred on the first day of the
four-quarter reference period, including any EBITDA and any pro forma expense and cost reductions that have occurred or are reasonably expected to occur, in the reasonable judgment of a financial officer that is an Authorized Person of the Par
Borrower (regardless of whether those cost savings or operating improvements could then be reflected in pro forma financial statements in accordance with Regulation S-X promulgated under the Securities Act or
any other regulation or policy of the SEC related thereto);
(b) the EBITDA attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded;
(c) the Financial Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses
(and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Financial Fixed Charges will not be obligations of the Par Borrower or any of its
Restricted Subsidiaries following the Calculation Date;
(d) interest income reasonably anticipated by the Par Borrower to be received
during the applicable four-quarter period from cash or Cash Equivalents held by the Par Borrower or any Restricted Subsidiary, which cash or Cash Equivalents exist on the Calculation Date or will exist as a result of the transaction giving rise to
the need to calculate the Financial Fixed Charge Coverage Ratio, will be included;
(e) any Person that is a Restricted Subsidiary on the
Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;
(f) any Person that is
not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period;
(g) if any Indebtedness bears a floating rate of interest, the Interest Expense on such Indebtedness will be calculated as if the rate in
effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedge Obligation applicable to such Indebtedness if such Hedge Obligation has a remaining term as at the Calculation Date in excess of 12
months); and
(h) interest on a Capitalized Lease Obligations and imputed interest on Attributable Indebtedness shall be deemed to accrue
at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation or Attributable Indebtedness in accordance with GAAP.
“Financial Fixed Charges” means, with respect to Par Borrower and its Restricted Subsidiaries, the sum of
Consolidated Cash Interest Expense paid during such period, regularly scheduled principal payments made on Borrowed Money that are required to be made during such period, and Distributions paid in cash with respect to preferred Equity Interests
(other than Upstream Payments, and Permitted Holdings Payments (Tax)).
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“Financial Reporting Trigger Period” means, the period
(a) commencing on the day that Adjusted Excess Availability for a period of five (5) consecutive Business Days is less than the greater of
(i) $85,000,000 and (ii) the lesser of 15.0% of the Borrowing Base and the Maximum Revolver Amount on such day; and
(b) continuing
until the day Adjusted Excess Availability has been greater than the greater of (A) $85,000,000 and (B) the lesser of 15.0% of the Borrowing Base and the Maximum Revolver Amount on such day for a period of thirty (30) consecutive calendar
days.
“First Purchase Crude Payables” means, at any time, the unpaid amount of any obligation of an Obligor as
a “first purchaser” of crude oil, which is secured by a statutory “first purchaser” Lien created under the laws of any state to the extent such obligation is not at the time of determination covered by a Letter of Credit
issued hereunder.
“First Purchaser Adjusted Availability” has the meaning specified therefor in the definition
of “First Purchaser Reserve”.
“First Purchaser Reserve” means, the aggregate amount
of reserves established by the Agent from time to time in its Permitted Discretion in respect of First Purchase Crude Payables owed by the Obligors; provided, however, that, (a) so long as Excess Availability (without giving effect to a First
Purchaser Reserve, but as reduced by an amount not to exceed the First Purchase Crude Payables minus $100,000,000 (such amount, “First Purchaser Adjusted Availability”)) is greater than $375,000,000, the First Purchaser
Reserve shall be not greater than the amount by which the First Purchase Crude Payables exceed $100,000,000; (b) so long as First Purchaser Adjusted Availability is greater than $275,000,000 (but First Purchaser Adjusted Availability is not greater
than $375,000,000), the First Purchaser Reserve shall be not greater than the amount by which the First Purchase Crude Payables exceed $50,000,000; and (c) so long as First Purchaser Adjusted Availability is less than or equal to $275,000,000,
the First Purchaser Reserve shall be the amount equal to the First Purchase Crude Payables.
“Fixed Charge Coverage
Ratio” means, with respect to the Par Borrower and its Restricted Subsidiaries for any period, the ratio (a) of EBITDA for such period to (b) Fixed Charges for such period. Unless otherwise specified herein, the Fixed Charge
Coverage Ratio shall be calculated on a trailing four (4) fiscal quarter basis for the applicable Reference Period. In the event that the Par Borrower or any of its Restricted Subsidiaries Incurs, repays, repurchases or redeems any Indebtedness
(other than Incurrences and repayments, in each case, in respect of borrowings under this Agreement) or issues, repurchases or redeems Disqualified Equity Interests or preferred stock subsequent to the commencement of the period for which the Fixed
Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio
will be calculated giving pro forma effect to such Incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Equity Interests or preferred stock, and the use of the proceeds therefrom
as if the same had occurred at the beginning of such period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(a) acquisitions that have been made by the Par Borrower or any of its Restricted Subsidiaries, including through mergers, amalgamations
or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the Par Borrower or any of its Restricted Subsidiaries, and including all related financing transactions and including increases in ownership of Restricted
Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date, or
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that are to be made on the Calculation Date, will be given pro forma effect as if they had occurred on the first day of the four-quarter reference period, including any EBITDA and any pro forma
expense and cost reductions that have occurred or are reasonably expected to occur, in the reasonable judgment of a financial officer that is an Authorized Person of the Par Borrower (regardless of whether those cost savings or operating
improvements could then be reflected in pro forma financial statements in accordance with Regulation S-X promulgated under the Securities Act or any other regulation or policy of the SEC related thereto);
(b) the EBITDA attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership
interests therein) disposed of prior to the Calculation Date, will be excluded;
(c) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed
Charges will not be obligations of the Par Borrower or any of its Restricted Subsidiaries following the Calculation Date;
(d) interest
income reasonably anticipated by the Par Borrower to be received during the applicable four-quarter period from cash or Cash Equivalents held by the Par Borrower or any Restricted Subsidiary, which cash or Cash Equivalents exist on the Calculation
Date or will exist as a result of the transaction giving rise to the need to calculate the Fixed Charge Coverage Ratio, will be included;
(e) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during
such four-quarter period;
(f) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a
Restricted Subsidiary at any time during such four-quarter period;
(g) if any Indebtedness bears a floating rate of interest, the Interest
Expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedge Obligation applicable to such Indebtedness if such Hedge Obligation
has a remaining term as at the Calculation Date in excess of 12 months); and
(h) interest on a Capitalized Lease Obligations and imputed
interest on Attributable Indebtedness shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation or
Attributable Indebtedness in accordance with GAAP.
“Fixed Charges” means, with respect to any fiscal period and
with respect to the Par Borrower and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP,
(a) the sum,
without duplication, of
(i) the consolidated Interest Expense of the Par Borrower and its Restricted Subsidiaries that was
paid in cash during such period; plus
(ii) regularly scheduled cash dividends on any series of Disqualified Equity
Interests or preferred stock of the Par Borrower or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Par Borrower (other than Disqualified Equity Interests) or to the Par Borrower
or a Restricted Subsidiary of the Par Borrower, in each case, determined on a consolidated basis in accordance with GAAP; minus
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(b) to the extent included in clause (a) above, write-offs of deferred
financing costs of the Par Borrower and its Restricted Subsidiaries during such period and any charge related to, or any premium or penalty paid in connection with, paying any such Indebtedness of the Par Borrower and its Restricted Subsidiaries
prior to its stated maturity.
“Flood Insurance Laws” means, collectively, (i) the National Flood Insurance
Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994
as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) Biggert-Waters Flood Insurance Reform Act of 2012 as now or
hereafter in effect or any successor thereto.
“Floor” means the rate of interest equal to 0.00% per annum.
“FLSA” means the Fair Labor Standards Act of 1938.
“Foreign Lender” means any Lender or Participant that is not a U.S. Person.
“Foreign Subsidiary” means any direct or indirect subsidiary of any Loan Party that is organized under the laws of
any jurisdiction other than the United States, any state thereof or the District of Columbia.
“FRB” means the
Board of Governors of the Federal Reserve System of the United States.
“FSHCO” means any Subsidiary of any
Borrower that has no material assets other than immaterial cash and Cash Equivalents held on a temporary basis and (directly or indirectly) Equity Interests in or Indebtedness of one or more CFCs or Foreign Subsidiaries.
“Funded Indebtedness” means, without duplication,
(i) all Indebtedness of the Par Borrower and its Restricted Subsidiaries described in clauses (a), (b) (only to the
extent such letter of credit, bankers’ acceptance, bank guaranty, surety bond or similar instrument has been drawn and then only in the amount of the outstanding reimbursement obligation with respect thereto that is not fully Cash
Collateralized), and (c) of the definition of “Indebtedness” (including all Attributable Indebtedness of the Par Borrower and its Restricted Subsidiaries in respect of Capital Leases) and
(ii) all Indebtedness of the Par Borrower and its Restricted Subsidiaries described in clauses (d) and (h) of
the definition of “Indebtedness” to the extent relating to other Funded Indebtedness.
For the avoidance of doubt, no
Indebtedness described under clauses (p) or (q) of the definition of “Permitted Indebtedness” will constitute Funded Indebtedness.
“Funding Date” means the date on which a Borrowing occurs.
“Funding Losses” has the meaning specified therefor in
Section 2.12(b)(ii) of this Agreement.
“GAAP” means generally
accepted accounting principles as in effect from time to time in the United States, consistently applied.
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“Governing Documents” means, with respect to any Person, the
certificate or articles of incorporation, notice of articles, by-laws, certificate of formation, operating agreement, limited liability company agreement, certificate of limited partnership, limited
partnership agreement or other organizational documents of such Person.
“Governmental Authority” means the
government of any nation or any political subdivision thereof, whether at the national, state, tribal, territorial, provincial, county, municipal or any other level, and any agency, authority, commission, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European
Central Bank).
“Guarantee” means, as to any Person, any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation,
(b) to purchase or lease property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation,
(c) to maintain
working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or
(d) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment
or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of
business.
The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term
“Guarantee” as a verb has a corresponding meaning.
“Guarantor” means (a) each
Person that is a “Guarantor” under the Guaranty and Security Agreement, and (b) each other Person that becomes a guarantor after the Closing Date pursuant to Section 5.11
of this Agreement; provided, that, notwithstanding anything to the contrary herein, any “Guarantor” or other “Loan Party” (as defined therein) under any Priority Fixed Debt shall be (or substantially
concurrently become) a Loan Party hereunder.
“Guaranty and Security Agreement” means that certain amended and
restated guaranty and security agreement, dated as of even date with this Agreement, executed and delivered by each of the Loan Parties to the Agent.
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“Hazardous Materials” means (a) substances that are defined
or listed in, or otherwise classified pursuant to, any Environmental Laws as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to
define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or petroleum derived
substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable
substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of fifty (50) parts per million.
“Hedge Agreement” means a “swap agreement” as that term is defined in Section 101(53B)(A) of
the Bankruptcy Code.
“Hedge Obligations” means any and all obligations or liabilities, whether absolute or
contingent, due or to become due, now existing or hereafter arising, of each Obligor and its Restricted Subsidiaries (excluding Intermediation Subsidiaries) arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into
with one or more of the Hedge Providers.
“Hedge Provider” means any Bank Product Provider that is a party to a
Hedge Agreement with an Obligor or its Restricted Subsidiaries (excluding Intermediation Subsidiaries) or otherwise provides Bank Products under clause (f) of the definition thereof; provided, that if, at any time, a
Lender ceases to be a Lender under this Agreement (prior to the payment in full of the Obligations), then, from and after the date on which it ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Hedge Providers
except with respect to the trades in existence on such date and the obligations with respect to Hedge Agreements for trades entered into after such date with such former Lender or any of its Affiliates from and after such date shall not constitute
Hedge Obligations.
“Hermes” shall have the meaning set forth in the preamble to this Agreement.
“High Risk Area” shall mean (i) the Persian Gulf, and (ii) areas which are war zones or subject to
material terrorism, piracy or other similar risks as reasonably determined by the Agent in consultation with the Borrowers from time to time.
“Holdings” has the meaning specified therefor in the preamble to this Agreement.
“Holdings Guarantee” means the guarantee by Holdings of principal and interest due and payable on the Loans pursuant
to that certain Amended and Restated Guaranty, dated as of the date hereof, by Holdings, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Hydrocarbons” means oil, gas, asphalt, casing head gas, condensate, distillate, liquid hydrocarbons, gaseous
hydrocarbons, all products refined, processed, separated, settled and dehydrated therefrom, including, without limitation, kerosene, liquefied petroleum gas, refined lubricating oils, diesel fuel, drip gasoline, natural gasoline, biodiesel, ethanol
and all other minerals.
“Immaterial Subsidiary” means any Restricted Subsidiary of a Loan Party that
individually owns Total Assets with a book value of no more than five percent (5.00%) of Total Assets of Par Borrower and its Restricted Subsidiaries; provided, that all Immaterial Subsidiaries together shall own Total Assets with an
aggregate book value of no more than seven and one-half percent (7.50%) of Total Assets of Par Borrower and its Restricted Subsidiaries; provided, further, that no Subsidiary shall
constitute an Immaterial Subsidiary if it directly or indirectly Guarantees or provides credit support for Indebtedness for borrowed money of any Loan Party with a principal amount in excess of $1,000,000.
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“In-Transit Crude Oil”
means, crude oil purchased by an Obligor, for delivery to such Obligor via pipeline, barge, pipeline, vessel or rail from a vendor or supplier.
“In-Transit Products” means, refined fuel, jet fuel, diesel, unleaded gas,
blendstocks, other additives, ethanol, biofuels and other renewable fuels purchased by an Obligor, for delivery to such Obligor via pipeline, barge, pipeline, vessel or rail from a vendor or supplier.
“Increase” has the meaning specified therefor in Section 2.14(a).
“Increase Date” has the meaning specified therefor in
Section 2.14(c).
“Increase Joinder” has the meaning specified
therefor in Section 2.14(b).
“Incur” means, with respect to any
Indebtedness, to incur, create, issue, assume, Guarantee or otherwise become liable for or with respect to, or become responsible for, the payment of such Indebtedness (and “Incurrence” and
“Incurred” will have meanings correlative to the foregoing); provided, that
(a) any
Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary of the Par Borrower will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the Borrower, and
(b) neither the accrual of interest nor the accretion of original issue discount nor the payment of interest in the form of additional
Indebtedness with the same terms and the payment of dividends on Disqualified Equity Interests in the form of additional shares of the same class of Disqualified Equity Interests (to the extent provided for when the Indebtedness or Disqualified
Equity Interests on which such interest or dividend is paid was originally issued) will be considered an Incurrence of Indebtedness;
provided, that in each case the amount thereof is for all other purposes included in the Fixed Charges, Financial Fixed Charges and Indebtedness
of the Par Borrower or its Restricted Subsidiary as accrued.
“Indebtedness” as to any Person means
(a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other
obligations in respect of letters of credit, bankers acceptances, or other financial products,
(c) that portion of the obligations of such
Person as a lessee under Capital Leases that is properly classified as a liability on a balance sheet in accordance with GAAP,
(d) all
obligations or liabilities of others that constitute Indebtedness secured by a Lien on any asset of such Person, irrespective of whether such obligation or liability is assumed,
(e) all obligations of such Person to pay the deferred purchase price of assets (other than trade payables incurred in the ordinary course of
business and repayable in accordance with customary trade practices and, for the avoidance of doubt, other than royalty payments payable in the ordinary course of business in respect of non-exclusive licenses)
and any earn-out or similar obligations, solely to the extent earned, due and payable for 10 Business Days or more,
47
(f) all monetary obligations of such Person owing under Hedge Agreements (which amount shall
be calculated based on the amount that would be payable by such Person if the Hedge Agreement were terminated on the date of determination),
(g) any Disqualified Equity Interests of such Person, and
(h) any obligation of such Person Guaranteeing or intended to Guarantee (whether directly or indirectly Guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any other Person that constitutes Indebtedness under any of clauses (a) through (g) above.
For purposes of this definition,
(i) the amount of any Indebtedness represented by a Guarantee or other similar instrument shall be the lesser of the principal
amount of the obligations Guaranteed and still outstanding and the maximum amount for which the Guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Indebtedness,
(ii) the amount of any Indebtedness which is limited or is non-recourse to a Person or
for which recourse is limited to an identified asset shall be valued at the lesser of (A) if applicable, the limited amount of such obligations, and (B) if applicable, the fair market value of such assets securing such obligation and
(iii) earn-out and similar payment obligations shall be valued based upon the amount
thereof, if any, required to be recorded on a balance sheet prepared in accordance with GAAP.
“Indemnified
Liabilities” has the meaning specified therefor in Section 9.3 of this Agreement.
“Indemnified Person” has the meaning specified therefor in
Section 9.3 of this Agreement.
“Indemnified Taxes” means,
(a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by, or on account of any obligation of, any Loan Party under any Loan Document, and (b) to the extent not otherwise described in the foregoing
clause (a), Other Taxes.
“Individual Letter of Credit Sublimit” means, for each Issuing Bank, the
Letter of Credit sublimit set forth for such Issuing Bank on Schedule 1.2.
“Insolvency Proceeding” means
any proceeding commenced by or against any Person under any provision of any Debtor Relief Law or under any other state, provincial or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria,
compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.
“Insurance and Condemnation Event” means the receipt by any Loan Party or any of its Restricted Subsidiaries of any
cash insurance proceeds or condemnation awards payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of their respective property (other than of any Priority Fixed Debt Collateral or
Intermediation Collateral).
“Intellectual Property” means, all intellectual and similar Property of a Person,
including inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software (including source code and
object code), databases, inventions (whether or not patentable), algorithms, processes, product designs, industrial designs, blueprints, drawings, data, customer lists, URLs and domain names, specifications,
48
documentations, reports, catalogs, literature, and any other forms of technology or proprietary information of any kind, including all rights therein and all applications for registration or
registrations thereof; all embodiments or fixations thereof and all related documentation, applications, registrations and franchises; all licenses or other rights to use any of the foregoing; and all books and records relating to the foregoing.
“Intercompany Subordination Agreement” means an intercompany subordination agreement, dated as of even date
with this Agreement, executed and delivered by each Loan Party and each of its Restricted Subsidiaries required to be a party to such agreement pursuant to clause (f) of the definition of “Permitted
Indebtedness” and/or clause (o) of the definition of “Permitted Investments” and the Agent, the form and substance of which is reasonably satisfactory to Agent.
“Intercreditor Agreements” means any collateral rights agreement, intermediation access or acknowledgment agreement
or intercreditor agreement contemplated by the terms of the Loan Documents and reasonably acceptable to the Agent, in each case to the extent in effect and as the context may require.
“Interest Expense” means, for any period, the aggregate of the interest expense of the Par Borrower and its
Restricted Subsidiaries or of the Borrower Group, as applicable, for such period, determined on a consolidated basis in accordance with GAAP.
“Interest Period” means, with respect to any SOFR Loan, a period commencing on the date of the making of such SOFR
Loan (or the continuation of a SOFR Loan or the conversion of a Base Rate Loan to a SOFR Loan) and ending 1, 3 or 6 months thereafter; provided, that
(a) interest shall accrue at the applicable rate based upon Term SOFR from and including the first day of each Interest Period to, but
excluding, the day on which any Interest Period expires,
(b) any Interest Period that would end on a day that is not a Business Day shall
be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day,
(c) with respect to an 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), the Interest Period shall end on the last Business Day of the calendar month that is 1, 3 or 6 months after the date on which the Interest Period began, as applicable,
(d) Borrowers may not elect an Interest Period which will end after the applicable Maturity Date;
(e) with respect to any initial Loans, if an Interest Period begins on the Closing Date, such Interest Period shall be permitted, at the
election of the Par Borrower, to end on the last Business Day of the calendar month containing the Closing Date; and
(f) no tenor that has
been removed from this definition pursuant to Section 2.12(d)(iii)(D) shall be available for specification in any SOFR Notice or conversion or continuation notice.
“Intermediate Products” means, all Feedstocks that have been partially processed or refined as isomerate, cat feed,
gasoline components, naphtha or hydrocracker feed.
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“Intermediation Cash Management Services” means obligations owed
by Par Hawaii Refining (only under the PHR Intermediation Facility as it relates to the Par Hawaii Refinery) and any Intermediation Subsidiary to any Intermediation Counterparty, securities intermediary (with respect to a Securities Account) or bank
(with respect to a Deposit Account) in respect of any overdraft and related liabilities arising from credit cards, treasury, depository and cash management services or any automated clearing house transfers of funds, controlled disbursement or any
other banking products, services or arrangements (including cash sweeps or zero balance arrangements).
“Intermediation
Collateral” means:
(a) with respect to Par Hawaii Refining, the PHR Intermediation Collateral; and
(b) with respect to any Subsidiary of the Par Borrower (other than Par Hawaii Refining) that is party to an Intermediation Facility and is an
Intermediation Subsidiary, all of the following property or assets of such party:
(i) all inventory;
(ii) all receivables;
(iii) all Renewable Identification Numbers;
(iv) all investment property, chattel paper, general intangibles (excluding trademarks, trade names and other intellectual
property), documents and instruments, in each case, to the extent relating to items in subclauses (b)(i), (b)(ii) and (b)(iii) (but for the avoidance of doubt, excluding Equity Interests of each Subsidiary);
(v) deposit accounts and other bank and securities accounts (excluding any Dominion Account and any account holding the
exclusive proceeds in favor of an Other Debt Representative in respect of any Priority Fixed Debt or Incremental Equivalent Debt), and cash and Cash Equivalents on deposit therein;
(vi) commercial tort claims;
(vii) commodities accounts and contracts;
(viii) Intermediation Documents;
(ix) tax refunds;
(x) Hedge Agreements;
(xi) books and records relating to subclauses (b)(i) through (b)(x); and
(xii) all proceeds of (including proceeds of business interruption insurance and other insurance), and supporting obligations,
including letter of credit rights, with respect to, any of the foregoing (except to the extent that such proceeds and supporting obligations constitute Collateral);
provided, that Intermediation Collateral may also include such other property or assets as agreed in writing by the Agent and the Par Borrower;
provided, further, that “Intermediation Collateral” shall not include any of the foregoing assets to the extent such assets are excluded pursuant to the express agreement of (x) Par Hawaii
Refining or the applicable Intermediation Subsidiary and (y) the applicable Intermediation Counterparty. For the avoidance of doubt, the Intermediation Collateral does not include any Intermediation Property.
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“Intermediation Counterparty” means any counterparty to an
Intermediation Facility with the Par Borrower or any Subsidiary and any permitted successor or assign of such counterparty.
“Intermediation Document” means (a) any agreement, document or instrument entered into in connection with or
related to any Intermediation Facility, including any documents of title for any Inventory that constitutes Intermediation Collateral and (b) each Hedge Agreement and/or cash management agreement entered into by an Par Hawaii Refining (only in
connection with the PHR Intermediation Facility with respect to the Par Hawaii Refinery) or any Intermediation Subsidiary in connection with or related to any Intermediation Facility.
“Intermediation Facility” means, as applicable,
(a) the PHR Intermediation Facility,
(b) any uncommitted revolving credit and/or letter of credit facility for Par Hawaii Refining, so long as the loans and extensions of credit
made thereunder shall solely finance and provide credit support for the purchase of crude oil and other feedstocks, and pay fees and expenses in connection therewith, together with all related loan documents, security agreements, account control
agreements, other collateral documents and ancillary agreements among the parties thereto, in each case as any of the same may be extended, renewed, amended, supplemented, restated, amended and restated or otherwise modified from time to time, or
refinanced and/or replaced with another Intermediation Facility from time to time and in whole or in part, and
(c) any other
intermediation, supply and offtake or similar arrangement (including crude oil or other feedstock supply agreements, natural gas supply agreements, hydrogen supply agreements, or off-take agreements relating
to intermediate or refined products), in each case, entered into by the Par Borrower or any of its Subsidiaries and an Intermediation Counterparty for purposes of facilitating a customary intermediation arrangement, together with all related storage
agreements, marketing and sales agreements, agency agreements, security agreements, account control agreements, other collateral documents and other ancillary agreements among such parties, in each case as any of the same may be extended, renewed,
amended, supplemented, restated, amended and restated or otherwise modified from time to time, or refinanced and/or replaced with another Intermediation Facility from time to time and in whole or in part;
provided that
(i)
the terms of any Intermediation Facility described in clause (c) shall be (A) on the then prevailing market terms or (B) not materially more disadvantageous to the Lenders, taken as a whole, as compared to the terms of
the Intermediation Facility in effect on the Closing Date, taken as a whole, in each case of clause (A) or (B), as determined in good faith by an Authorized Person of the Par Borrower,
(ii) such Intermediation Facility shall be in the ordinary course of business and not for speculative purposes; provided
that the Intermediation Facility described in clause (b) (as such Intermediation Facility is in effect on the Closing Date) shall be deemed to be in the ordinary course of business,
(iii) no Intermediation Facility shall provide for any Lien on any assets other than Intermediation Collateral,
(iv) none of Holdings, Par Borrower or Par Borrower’s Restricted Subsidiaries (other than (A) Par Hawaii Refining in
the case of the PHR Intermediation Facility, as it relates to the Par Hawaii Refinery and (B) Intermediation Subsidiaries) shall enter into an Intermediation Facility (other than a guarantee thereof by Par Borrower to the extent permitted by
clause (q)(ii) of the definition of “Permitted Indebtedness”), and
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(v) each Intermediation Counterparty with respect thereto, each Loan Party
and each Restricted Subsidiary party to such Intermediation Facility shall be a party to the applicable Intercreditor Agreement.
“Intermediation Guarantor” means any Intermediation Subsidiary that is a Guarantor.
“Intermediation Property” means all Hydrocarbons from time to time owned by an Intermediation Counterparty under the
terms of an Intermediation Facility.
“Intermediation Subsidiary” means any Subsidiary of Par Borrower (other
than the Guarantors as of the Closing Date) that (i) is acquired after the Closing Date and such acquisition is otherwise permitted by the Loan Documents or (ii) is formed after the Closing Date and, in each case of clauses
(i) and (ii), is designated by an Authorized Person of Par Borrower as an Intermediation Subsidiary pursuant to a certificate delivered to the Agent; provided, that for the purposes of this Agreement, Par Hawaii
Refining shall not be an Intermediation Subsidiary.
The Par Borrower may designate any such Subsidiary of the Par Borrower (other than
Par Hawaii Refining) to become an Intermediation Subsidiary if:
(A) such Subsidiary
(1) has entered into, is entering into, or will promptly enter into, an Intermediation Facility;
(2) does not own any Equity Interest of any Borrower or any Restricted Subsidiary of the Par Borrower (other than a Restricted
Subsidiary that is also an Intermediation Subsidiary); and
(3) would constitute an Investment which the Par Borrower could
make in compliance with Section 6.7; and
(B) the Payment Conditions are satisfied and,
after giving effect to such designation, there is no pro forma Overadvance.
Notwithstanding the preceding, if, at any time, an
Intermediation Subsidiary would fail to meet the preceding requirements in clause (A)(1) and (2) as an Intermediation Subsidiary, it shall thereafter cease to be a Intermediation Subsidiary for purposes of this
Agreement and shall be required to comply with Section 5.11 (as applicable and to the extent not already satisfied); provided, that the assets of such former Intermediation Subsidiary may
not be included in the Borrowing Base until the Agent has completed a customary field examination and/or audit in respect of such assets (it being understood that any such field examination and/or audit shall be at the Borrowers’ expense and
in addition to any periodic field examination and/or audit permitted pursuant to Section 5.7(c)).
“Intermediation Subsidiary Distribution” means any Distribution by an Intermediation Subsidiary.
“Inventory” is as defined in the UCC, including all goods intended for sale, lease, display or demonstration; all
work in process; and all raw materials, and other materials and supplies of any kind that are or could be used in connection with the manufacture, printing, packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used
or consumed in an Obligor’s business (but excluding Equipment).
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“Inventory Reserve” means reserves established by the Agent in its
Permitted Discretion to reflect declines in market value or to reflect factors that may negatively impact the value of Inventory, including change in salability, obsolescence, seasonality, theft, shrinkage, imbalance, change in composition or mix,
markdowns and vendor chargebacks.
“Investments” means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the form of loans or other extensions of credit (including Guarantees), advances, capital contributions (by means of any transfer of cash or other property to others or any payment for property or
services for the account or use of others) (excluding (a) commission, travel, and similar advances to officers and employees of such Person made in the ordinary course of business and (b) bona fide Accounts arising in the ordinary course
of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), and any
other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the Par Borrower or any Restricted Subsidiary of the Par Borrower sells or otherwise disposes of any Equity Interests of any
wholly-owned Restricted Subsidiary of the Par Borrower that is a Guarantor such that, after giving effect to any such sale or disposition, such Person becomes an Excluded Subsidiary under clause (a) of the definition thereof, the Par Borrower
will be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value, as determined in good faith by an Authorized Person of the Par Borrower at the time such Subsidiary becomes an Excluded Subsidiary,
of such Excluded Subsidiary not sold or disposed of. The acquisition by the Par Borrower or any Restricted Subsidiary of the Par Borrower of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Par Borrower
or such Restricted Subsidiary in such third Person in an amount equal to the fair market value, as determined in good faith by an Authorized Person of the Par Borrower, of the Investment held by the acquired Person in such third Person. The amount
of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustment for increases or decreases in value, or write-ups, write-downs, or
write-offs with respect to such Investment, less any amount realized in respect of such Investment upon the sale, collection, return of capital or loan or advance repayment (not to exceed the original amount invested).
“Investment Grade Receivables” means, any Receivable due to any Obligor and owing by an Eligible Account Obligor
(a) with (or that is a wholly-owned Subsidiary of a Person that has) a long-term issuer rating of
BBB- or higher by S&P and Baa3 or higher by Moody’s (or the equivalent of such rating organization),
(b) listed on Schedule G-1 (as such schedule, with the consent of the Agent in its
Permitted Discretion, (i) is updated and attached to a Borrowing Base Report or (ii) is updated and supplemented from time to time) and
(c) insured against loss, damage, hazards and risks.
“IRC” means the Internal Revenue Code of 1986, as amended, and any successor statutes, and all regulations and
guidance promulgated thereunder. Any reference to a specific section of the IRC shall be deemed to be a reference to such section of the IRC and any successor statutes, and all regulations and guidance promulgated thereunder.
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“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the International Standby Practices 1998 (International Chamber
of Commerce Publication No. 590) and any version or revision thereof accepted by the Issuing Bank for use.
“Issuer
Document” means, with respect to any Letter of Credit, a letter of credit application, a letter of credit agreement, or any other document, agreement or instrument entered into (or to be entered into) by a Borrower in favor of Issuing
Bank and relating to such Letter of Credit.
“Issuing Bank” means Wells Fargo, Bank of America, N.A. and its
branches and Affiliates, MUFG Bank, LTD, Goldman Sachs Bank USA, Regions Bank, U.S. Bank, National Association or any other Lender that, at the request of Borrowers and with the consent of Agent (such consent not to be unreasonably withheld, delayed
or conditioned), agrees, in such Lender’s sole discretion, to become an Issuing Bank for the purpose of issuing Letters of Credit pursuant to Section 2.11 of this Agreement, and Issuing Bank shall
be a Lender.
“Joint Lead Arrangers” means Wells Fargo, Bank of America, N.A., MUFG Bank, LTD, Regions Bank,
Citibank, N.A., U.S. Bank, National Association, The Bank of Nova Scotia and Truist Securities, Inc., each as a joint lead arranger and joint bookrunner.
“Latest Maturity Date” means, on any date of determination, the latest Maturity Date applicable to any Loan or
Commitment hereunder at such time, including the latest Maturity Date of any Extended Revolver Commitment or any Increase, in each case as extended in accordance with this Agreement from time to time. If no Extension has been consummated pursuant to
Section 2.16 of this Agreement, the Latest Maturity Date is the Maturity Date.
“L/C Backed Receivables” means, any Receivable due to any Obligor and owing by an Eligible Account Obligor to the
extent such Receivable is backed by a letter of credit (a) in form and substance, and from an Issuing Bank that is, reasonably acceptable to the Agent, and (b) which is in the possession of, and directly drawable by, a Borrower
(provided, that during a Cash Dominion Period, such letter credit shall be in the possession of, and directly drawable by, the Agent).
“LCT Election” means the Borrower’s election to treat a specified action or transaction as a Limited Condition
Transaction.
“LCT Test Date” has the meaning specified therefor in
Section 1.9 of this Agreement.
“Lender” has the meaning
specified therefor in the preamble to this Agreement, shall include Issuing Bank and the Swing Lender and shall include any other Person made a party to this Agreement pursuant to the provisions of
Section 12.1 of this Agreement and “Lenders” means each of the Lenders or any one or more of them.
“Lender Group” means each of the Lenders (including Issuing Bank and the Swing Lender) and Agent, or any one or more
of them.
“Lender Group Expenses” means all
(a) costs or expenses (including insurance premiums but excluding Taxes, which shall be governed by Section 2.18, other than Taxes that
represent losses, claims, damages, etc. arising from any non-Tax claim) required to be paid by any Loan Party or its Restricted Subsidiaries under any of the Loan Documents that are paid, advanced, or incurred
by the Lender Group,
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(b) reasonable and documented out-of-pocket fees or charges paid or incurred by Agent in connection with the Lender Group’s transactions with each Loan Party and its Restricted Subsidiaries under any of the Loan Documents, including
fees or charges for photocopying, notarization, couriers and messengers, telecommunication, public record searches (including Tax lien, litigation and UCC searches), filing fees, recording fees, publication, real estate surveys, real estate title
policies and endorsements, and environmental audits,
(c) Agent’s reasonable and customary fees and charges imposed or incurred in
connection with any background checks or OFAC/PEP searches related to any Loan Party or its Restricted Subsidiaries,
(d) Agent’s
reasonable and customary fees and charges (as adjusted from time to time) with respect to the disbursement of funds (or the receipt of funds) to or for the account of the Borrower (whether by wire transfer or otherwise), together with any out-of-pocket costs and expenses incurred in connection therewith,
(e) reasonable and customary charges imposed or incurred by Agent resulting from the dishonor of checks payable by or to any Loan Party,
(f) reasonable, documented out-of-pocket costs and expenses
paid or incurred by the Lender Group to correct any default or enforce any provision of the Loan Documents, or during the continuance of an Event of Default, in gaining possession of, maintaining, handling, preserving, storing, shipping, selling,
preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated,
(g)
field examination, appraisal, and valuation fees and expenses of Agent related to any field examinations, appraisals, or valuation to the extent of the fees and charges (and up to the amount of any limitation) provided in, and limited by,
Section 5.7(c) of this Agreement,
(h) Agent’s and Lenders’ reasonable,
documented costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees and expenses) relative to third party claims or any other lawsuit
or adverse proceeding paid or incurred, whether in enforcing or defending the Loan Documents or otherwise in connection with the transactions contemplated by the Loan Documents, Agent’s Liens in and to the Collateral, or the Lender
Group’s relationship with any Loan Party or any of its Restricted Subsidiaries,
(i) Agent’s reasonable and documented costs
and expenses (including reasonable and documented out-of-pocket attorneys’ fees and due diligence expenses) incurred in advising, structuring, drafting, reviewing,
administering (including travel, meals, and lodging), syndicating (including reasonable costs and expenses relative to the rating of the Loans, CUSIP, DXSyndicate™, SyndTrak or other
communication costs incurred in connection with a syndication of the loan facilities), or amending, waiving, or modifying the Loan Documents, and
(j) Agent’s and each Lender’s reasonable and documented costs and expenses (including reasonable and documented out-of-pocket attorneys, accountants, consultants, and other advisors fees and expenses) incurred in terminating, enforcing (including attorneys, accountants, consultants, and
other advisors reasonable and documented out-of-pocket fees and expenses incurred in connection with a “workout,” a “restructuring,” or an
Insolvency Proceeding concerning any Loan Party or any of its Restricted Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the
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Loan Documents, irrespective of whether a lawsuit or other adverse proceeding is brought, or in taking any enforcement action or any Remedial Action with respect to the Collateral
(provided that the fees and expenses of counsel that shall constitute Lender Group Expenses shall in any event be limited to one primary counsel, one local counsel in each reasonably necessary jurisdiction, one specialty counsel
to Agent in each reasonably necessary specialty area (including insolvency law) and one or more additional counsel to Lenders in the case of an actual or potential conflict of interest).
“Lender Group Representatives” has the meaning specified therefor in
Section 16.9 of this Agreement.
“Lender-Related Person” means,
with respect to any Lender, such Lender, together with such Lender’s Affiliates, officers, directors, employees, attorneys, representatives and agents.
“Letter of Credit” means a letter of credit (as that term is defined in the UCC) issued by Issuing Bank, including
any letter of credit issued for the account of a Person whose Equity Interests are acquired (including by way of merger, amalgamation or consolidation) by a Loan Party or any of its Subsidiaries in an Acquisition permitted hereunder and outstanding
at the time such Person is so acquired, so long as the issuer of such letter of credit then is or becomes a Lender and an Issuing Bank, in each case in accordance with the terms hereof, and such letter of credit complies with, and is subject to, the
terms of this Agreement.
“Letter of Credit Collateralization” means either
(a) providing Cash Collateral (pursuant to documentation reasonably satisfactory to Agent (including that Agent, for the benefit of the Secured
Parties, has a first priority perfected Lien in such Cash Collateral, subject to Liens described in clause (r) of the definition of “Permitted Liens”), including provisions that specify that
the Letter of Credit Fees and all commissions, fees, charges and expenses provided for in Section 2.11(k) of this Agreement (including any fronting fees) will continue to accrue while the Letters of
Credit are outstanding) to be held by Agent for the benefit of the Revolving Lenders in an amount equal to one hundred two and one half percent (102.5%) of the then existing Letter of Credit Usage with respect to any Letters of Credit,
(b) delivering to Agent documentation executed by all beneficiaries under the Letters of Credit, in form and substance reasonably satisfactory
to Agent and Issuing Bank, terminating all of such beneficiaries’ rights under the Letters of Credit, or
(c) providing Agent with a
standby letter of credit, in form and substance reasonably satisfactory to Agent, from a commercial bank acceptable to Agent (in its sole discretion) in an amount equal to one hundred five percent (102.5%) of the then existing Letter of Credit Usage
with respect to any Letters of Credit (it being understood that the Letter of Credit Fee and all fronting fees set forth in this Agreement will continue to accrue while the Letters of Credit are outstanding and that any such fees that accrue must be
an amount that can be drawn under any such standby letter of credit).
“Letter of Credit Disbursement” means a
payment made by Issuing Bank pursuant to a Letter of Credit.
“Letter of Credit Exposure” means, as of any date
of determination with respect to any Lender, such Lender’s participation in the Letter of Credit Usage pursuant to Section 2.11(e) on such date.
“Letter of Credit Fee” has the meaning specified therefor in
Section 2.6(b) of this Agreement.
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“Letter of Credit Indemnified Costs” has the meaning specified
therefor in Section 2.11(f) of this Agreement.
“Letter of Credit
Margin” has the meaning specified therefor in the definition of Applicable Margin.
“Letter of Credit Related
Person” has the meaning specified therefor in Section 2.11(f) of this Agreement.
“Letter of Credit Sublimit” means $600,000,000.
“Letter of Credit Usage” means, as of any date of determination, the sum of (a) the aggregate undrawn amount of
all outstanding Letters of Credit, plus (b) the aggregate amount of outstanding reimbursement obligations with respect to Letters of Credit which remain unreimbursed or which have not been paid through a Revolving Loan.
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement,
encumbrance, easement, lien (statutory or other), security interest, or other security arrangement and any other preference, priority, or preferential arrangement in the nature of a security interest that has the effect of an encumbrance, including
any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.
“Line Cap” means, as of any date of determination, the lesser of (a) the Maximum Revolver Amount, and
(b) the Borrowing Base as of such date of determination.
“Limited Condition Transaction” means
(a) any Acquisition or other Investment by the Par Borrower or one or more of its Restricted Subsidiaries permitted hereunder (whether by
merger, amalgamation, consolidation or other business combination or the acquisition of Equity Interests, assets or otherwise), whose consummation is not conditioned on the availability of, or on obtaining, third party financing;
(b) any Restricted Payment, redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Equity
Interests or preferred stock by the Par Borrower or one or more of its Restricted Subsidiaries requiring irrevocable notice in advance of such Restricted Payment, redemption, repurchase, defeasance, satisfaction and discharge or repayment; and
(c) any other transaction not prohibited by this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third
party financing (but excluding to the extent it is such transaction and not used for the purpose of consummating such transaction, any Borrowing hereunder, the issuance, renewal or extension of any Letter of Credit or any other credit event
hereunder).
“Loan” means any Revolving Loan, Swing Loan, Extraordinary Advance made (or to be made) hereunder.
“Loan Account” has the meaning specified therefor in Section 2.9
of this Agreement.
“Loan Documents” means this Agreement, the Control Agreements, the Borrowing Base Reports,
the Guaranty and Security Agreement, the Security Documents, the Holdings Guarantee, the Intercompany Subordination Agreement, each Intercreditor Agreement, to the extent in effect, Incremental Amendment
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or Extension Offer, any note or notes executed by Borrower in connection with this Agreement and payable to any member of the Lender Group, and any other instrument or agreement entered into, now
or in the future, by any Loan Party or any of its Restricted Subsidiaries and any member of the Lender Group in connection with this Agreement (but specifically excluding Bank Product Agreements) that is identified in such instrument or agreement as
being a “Loan Document”.
“Loan Party” means any Borrower or any Guarantor (other than
Holdings).
“Lubricants” means, Inventory consisting of motor oil, hydraulic oil, gear oil, cutting oil, grease,
and various chemicals and solvents of a similar nature. For avoidance of doubt, Lubricants are not Feedstocks, Intermediate Products or Refined Products.
“Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to time.
“Material Adverse Effect” means with respect to any event, act, condition or occurrence of whatever nature
(including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singularly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences
whether or not related, a material adverse effect on, or with respect to:
(a) the business, results of operations, financial condition or
assets of the Loan Parties and their Restricted Subsidiaries taken as a whole,
(b) the ability of Loan Parties and their Restricted
Subsidiaries taken as a whole to perform their respective payment obligations under the Loan Documents, or
(c) the material rights and
remedies of Agent and Lenders under any of the Loan Documents.
“Maturity Date” means May 14, 2031.
“Maximum Revolver Amount” means $1,800,000,000, as such amount may be (a) decreased by the amount of reductions
in the Revolver Commitments made in accordance with Section 2.4(c) of this Agreement, or (b) increased pursuant to Section 2.14 of this Agreement.
“Merchandise Inventory” means, Inventory (other than (a) Lubricants not for sale at a retail location and
(b) Petroleum Inventory) held by any Obligor for retail sale in the Ordinary Course of Business.
“Midstream
Assets” means (a) assets used primarily for gathering, transmission, compression, distribution, storage, processing, marketing, fractionation, dehydration, stabilization or treatment of natural gas, natural gas liquids, oil or
other Hydrocarbons, carbon dioxide or water, in each case, not integral to any refining process or comprising a material integral part of a Refinery (other than an Excluded Refinery) and (b) Equity Interests of any Person whose assets primarily
consist of assets referred to in clause (a).
“Moody’s” has the meaning specified therefor in the
definition of Cash Equivalents.
“Multiemployer Plan” means any multiemployer plan within the meaning of
Section 3(37) or 4001(a)(3) of ERISA with respect to which any Loan Party, Subsidiary or ERISA Affiliate has an obligation to contribute or has any liability, contingent or otherwise or could be assessed withdrawal liability assuming a complete
withdrawal from any such multiemployer plan.
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“Net Cash Proceeds” means:
(a) with respect to any Disposition by any Loan Party or any of its Restricted Subsidiaries of assets or an Insurance and Condemnation Event,
the amount of proceeds in the form of cash and Cash Equivalent received (directly or indirectly) from time to time (whether as initial consideration or through the payment of deferred consideration) by or on behalf of such Loan Party or such
Restricted Subsidiary, in connection therewith after deducting therefrom only
(i) the amount of any Indebtedness secured
by any Permitted Lien on any asset (other than (A) Indebtedness owing to Agent or any Lender under this Agreement or the other Loan Documents and (B) Indebtedness assumed by the purchaser of such asset) which is required to be, and is,
repaid in connection with such transaction or event,
(ii) reasonable fees, commissions, and expenses, and any premium or
payment or prepayment costs, related thereto and required to be paid by such Loan Party or such Restricted Subsidiary in connection with such transaction or event (including fees, commissions, or expenses incurred as described in clause
(d) of Permitted Holdings Payments),
(iii) Taxes paid, payable or reasonably expected to be payable to any
taxing authorities by or with respect to such Loan Party or such Restricted Subsidiary (or Permitted Holdings Payments in connection with Taxes paid, payable or reasonably expected to be payable to any taxing authorities by Holdings or any Affiliate
of Holdings) in connection with such transaction or event including any Taxes associated with the repatriation of such proceeds to a Loan Party, and
(iv) all amounts that are set aside as a reserve (A) for adjustments in respect of the purchase price of such assets,
(B) for any liabilities associated with such transaction or event, to the extent such reserve is required by GAAP, and (C) for the payment of unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or
within thirty (30) days after, the date of such transaction or event, to the extent that in each case the funds described above in this clause (iv) are (x) deposited into escrow with a third party escrow agent or set aside in a separate
Deposit Account that is subject to a Control Agreement in favor of Agent, and (y) offered to be paid to Agent as a prepayment of the applicable Obligations in accordance with Section 2.4 of this
Agreement at such time when such amounts are no longer required to be set aside as such a reserve; and
(b) with respect to the issuance or
incurrence of any Indebtedness by any Loan Party or any of its Restricted Subsidiaries, the aggregate amount of cash and Cash Equivalents received (directly or indirectly) from time to time (whether as initial consideration or through the payment or
disposition of deferred consideration) by or on behalf of such Loan Party or such Restricted Subsidiary in connection with such issuance or incurrence, after deducting therefrom only (i) reasonable fees, commissions, and expenses related
thereto and required to be paid by such Loan Party or such Restricted Subsidiary in connection with such issuance or incurrence, and (ii) Taxes paid, payable or reasonably expected to be payable to any taxing authorities by such Loan Party or
such Restricted Subsidiary in connection with such issuance or incurrence.
“Net Leverage Ratio” means at any
date, the ratio of (a) Consolidated Total Net Indebtedness on such date to (b) EBITDA for the four fiscal quarters ended immediately prior to such date for which internal financial statements are available.
“Non-Consenting Lender” has the meaning specified therefor in
Section 13.3(a) of this Agreement.
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“Non-Defaulting Lender”
means each Lender other than a Defaulting Lender.
“Not Otherwise Applied” means, (a) with respect to cash
investments permitted pursuant to clause (d) of the definition of “Permitted Investments”, cash not applied as a Specified Equity Contribution or pursuant to Section 6.7(a)(iii), (b)
with respect to cash used as a Specified Equity Contribution, cash not applied as an investment permitted pursuant to clause (d) of the definition of “Permitted Investments” or pursuant to
Section 6.7(a)(iii), or (c) with respect to cash used pursuant to Section 6.7(a)(iii), cash not applied as an investment permitted pursuant to clause
(d) of the definition of “Permitted Investments” or as a Specified Equity Contribution. “Otherwise Applied” has the correlated meaning.
“Note” means a promissory note made by the Borrowers in favor of a Lender evidencing the Loans made by such Lender,
substantially in the form attached as Exhibit C, and any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.
“Notification Event” means (a) the occurrence of a “reportable event” described in
Section 4043 of ERISA for which the thirty (30)-day notice requirement has not been waived by applicable regulations issued by the PBGC, (b) the withdrawal of any Loan Party, Subsidiary or ERISA
Affiliate from a Pension Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension
Plan or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, (d) the institution of proceedings to terminate, or the appointment of a
trustee with respect to, any Pension Plan by the PBGC or any Pension Plan or Multiemployer Plan administrator, (e) any other event or condition that would constitute grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan, (f) the imposition of a Lien pursuant to the IRC or ERISA in connection with any Employee Benefit Plan or the existence of any facts or circumstances that could reasonably be expected to
result in the imposition of a Lien with respect to an Employee Benefit Plan, (g) the partial or complete withdrawal of any Loan Party, Subsidiary or ERISA Affiliate from a Multiemployer Plan, (h) any event or condition that results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by the PBGC of proceedings to terminate or to appoint a trustee to administer a Multiemployer Plan under ERISA, (i) any Pension Plan being in “at
risk status” within the meaning of IRC Section 430(i), (j) any Multiemployer Plan being in “endangered status” or “critical status” within the meaning of IRC Section 432(b) or the determination that any
Multiemployer Plan is or is expected to be insolvent within the meaning of Title IV of ERISA, (k) with respect to any Pension Plan, any Loan Party, Restricted Subsidiary or ERISA Affiliate incurring a substantial cessation of operations within
the meaning of ERISA Section 4062(e), (l) the failure of any Pension Plan or Multiemployer Plan to meet the minimum funding standards within the meaning of the IRC or ERISA (including Section 412 of the IRC or Section 302 of ERISA),
in each case, whether or not waived, or (m) the failure to make by its due date a required payment or contribution with respect to any Pension Plan or Multiemployer Plan.
“Obligations” means
(a) all loans (including the Revolving Loans (inclusive of Extraordinary Advances and Swing Loan), debts, principal, interest (including any
interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding)), reimbursement or indemnification obligations with respect to
Letters of Credit (irrespective of whether contingent), premiums, liabilities (including all amounts charged to the Loan Account pursuant to this Agreement), obligations (including indemnification obligations), fees, Lender Group Expenses (including
any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), Guarantees, and all covenants and duties of any other
kind and description owing by any Loan
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Party arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether
direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any Loan Party is required to pay or reimburse by the Loan
Documents or by law or otherwise in connection with the Loan Documents, and
(b) all Bank Product Obligations; provided that,
anything to the contrary contained in the foregoing notwithstanding, the Obligations shall exclude any Excluded Swap Obligation.
Without
limiting the generality of the foregoing, the Obligations of the Borrowers under the Loan Documents include the obligation to pay (i) the principal of the Revolving Loan, (ii) (A) interest accrued on the Revolving Loans and (B) the
amount necessary to reimburse Issuing Bank for amounts paid or payable pursuant to Letters of Credit, (iii) Letter of Credit commissions, fees (including fronting fees) and charges, (iv) Lender Group Expenses, (v) fees payable under
this Agreement or any of the other Loan Documents, and (vi) indemnities and other amounts payable by any Loan Party under any Loan Document. Any reference in this Agreement or in the Loan Documents to the Obligations shall include all or any
portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.
“Obligor” means, each Borrower or Guarantor (other than Holdings or any Intermediation Subsidiary).
“OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Ordinary Course of Business” means, the ordinary course of business of any applicable Borrower or Restricted
Subsidiary.
“Originating Lender” has the meaning specified therefor in
Section 12.1(e) of this Agreement.
“Other Connection Taxes”
means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered or
performed its obligations or received payment under, or enforced its rights or remedies under this Agreement or any other Loan Document).
“Other Debt Representative” means, with respect to any series of Priority Fixed Debt, Incremental Equivalent Debt or
other secured Indebtedness permitted to be Incurred hereunder or any Refinancing Indebtedness of the foregoing, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which
such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors and assigns in such capacities.
“Other Taxes” means all present or future stamp, court, or documentary, intangible, recording, filing or similar
Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such
Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment required by the Loan Parties pursuant to Section 13.3).
“Overadvance” means, as of any date of determination, that the Revolver Usage is greater than any of the limitations
set forth in Section 2.1 or Section 2.11 of this Agreement.
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“Overnight Rate” means, for any day, the greater of (a) the
Federal Funds Rate and (b) an overnight rate determined by the Agent in accordance with banking industry rules on interbank compensation.
“Paid but Unexpired Standby Letters of Credit” shall mean, during a Post Supplier Payment Period, the amount
available for drawing under an outstanding standby Letter of Credit issued to support the purchase of Petroleum Inventory of the Borrowers as of such date of determination where the supplier of such Petroleum Inventory in connection with which such
standby Letter of Credit was specifically issued has been paid in full and therefore is not otherwise entitled to draw on such standby Letter of Credit, in whole or in part.
“Par Borrower” shall have the meaning set forth in the preamble to this Agreement.
“Par Hawaii” shall have the meaning set forth in the preamble to this Agreement.
“Par Hawaii Refinery” means the Par East refinery of Par Hawaii Refining located in Kapolei, Hawaii.
“Par Hawaii Refining” shall have the meaning set forth in the preamble to this Agreement.
“Par Montana” shall have the meaning set forth in the preamble to this Agreement.
“Par Petroleum Finance” shall mean Par Petroleum Finance Corp., a Delaware corporation.
“Par Rocky” shall have the meaning set forth in the preamble to this Agreement.
“Participant” has the meaning specified therefor in Section 12.1(e)
of this Agreement.
“Participant Register” has the meaning specified therefor in
Section 12.1(i) of this Agreement.
“Patriot Act” has the meaning
specified therefor in Section 4.13 of this Agreement.
“Payment Condition
Event” means each event in the Loan Documents that is subject to the satisfaction of the Payment Conditions.
“Payment Conditions” means, with respect to any Payment Condition Event, each of the following conditions:
(a) as of the date of any such payment or transaction, and immediately after giving effect thereto, no Specified Event of Default shall exist
or has occurred and is continuing, and
(b) either
(x) (A) average Adjusted Excess Availability during the immediately preceding 30 consecutive day period on a pro forma basis
shall have been greater than the greater of (I) $140,000,000 and (II) 15.0 % of the lesser of the Borrowing Base and the Maximum Revolver Amount then in effect; and
(B) immediately before and immediately after giving effect to the payment or transaction, on a pro forma basis using the most
recent calculation of the Borrowing Base immediately prior to any such payment or transaction, Adjusted Excess Availability shall be greater than the greater of (I) $140,000,000 and (II) 15.0% of the lesser of the Borrowing Base and the Maximum
Revolver Amount then in effect; or
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(y) (A) average Adjusted Excess Availability during the immediately
preceding 30 consecutive day period on a pro forma basis shall have been greater than the greater of (I) $85,000,000 and (II) 12.5% of the lesser of the Borrowing Base and the Maximum Revolver Amount then in effect,
(B) immediately before and immediately after giving effect to the payment or transaction, on a pro forma basis using the most
recent calculation of the Borrowing Base immediately prior to any such payment or transaction, Adjusted Excess Availability shall be greater than the greater of (I) $85,000,000 and (II) 12.5% of the lesser of the Borrowing Base and the Maximum
Revolver Amount then in effect; and
(C) as of the date of any such payment or transaction, and immediately before and immediately after
giving effect thereto, on a pro forma basis (including with respect to periods prior to the Closing Date), the Financial Fixed Charge Coverage Ratio (1) for the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter
or (2) during a Financial Reporting Trigger Period, for the 12-month period ending on the last day of the most recent month, prior to the date of such payment or transaction for which Agent has received
financial statements in accordance with Section 5.1 shall be at least 1.00 to 1.00.
“Payment Item” means each check, draft or other item of payment payable to any Obligor, including those constituting
proceeds of any Collateral.
“Payment Recipient” has the meaning specified therefor in
Section 14.19(a) of this Agreement.
“PBGC” means the Pension
Benefit Guaranty Corporation or any successor agency.
“Pension Plan” means any Employee Benefit Plan, other
than a Multiemployer Plan, which is subject to the provisions of Title IV or Section 302 of ERISA or Sections 412 or 430 of the IRC sponsored, maintained, or contributed to by any Loan Party, Subsidiary or ERISA Affiliate or to which any Loan
Party, Subsidiary or ERISA Affiliate has any liability, contingent or otherwise.
“Perfection Certificate” means
a certificate in the form of Exhibit D to this Agreement.
“Permitted Discretion” means a
determination made in the exercise, in good faith, of reasonable credit judgment (from the perspective of a secured, asset-based lender).
“Permitted Dispositions” means:
(a) any Disposition in which:
(i) the Par Borrower (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Disposition
at least equal to the fair market value, as determined at the time of contractually agreeing to such Disposition, of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii) at least 75% of the consideration therefor received by the Par Borrower or such Restricted Subsidiary is in the form of
cash or Cash Equivalents or replacement assets used or useful to the business or a combination of the foregoing. For purposes of this clause (ii), each of the following shall be deemed to be cash:
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(A) any liabilities (as shown on the Par Borrower’s or such Restricted
Subsidiary’s most recent balance sheet) of the Par Borrower or such Restricted Subsidiary (other than contingent liabilities, Indebtedness that is by its terms subordinated to the Loans or any Guarantee and liabilities to the extent owed to
the Par Borrower or any Subsidiary of the Borrower) that are assumed by the transferee of any such assets pursuant to a written customary assignment and assumption agreement that releases the Par Borrower or such Restricted Subsidiary from further
liability therefor;
(B) any securities, notes or other obligations received by the Par Borrower or such Restricted
Subsidiary from such transferee that are converted by the Par Borrower or such Restricted Subsidiary into cash within two hundred ten (210) days after the date of such Disposition (to the extent of the cash received in that conversion); and
(C) any Designated Non-Cash Consideration received by the Par Borrower or any of
its Restricted Subsidiaries in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that
time outstanding, not to exceed the greater of $200,000,000 and 5.0% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(b) any single transaction or series of related transactions that involves assets or Equity Interests and, to the extent the Payment Conditions
are not met, has a fair market value, as determined in good faith by an officer of the Par Borrower, of less than $50,000,000; provided, that the aggregate amount of all Dispositions made pursuant to this clause (b) while the
Payment Conditions are not met shall not exceed $150,000,000 in any period of twelve (12) consecutive calendar months (with any unused amount in any calendar year being carried over to the next succeeding calendar year);
(c) any Disposition of inventory (including Petroleum Inventory and other Inventory), Renewable Identification Numbers, environmental credits
and biodiesel credits, leases, licenses and other contractual rights to use crude oil and refined petroleum storage tanks, terminals, pipelines, trucks, railcars, barges or vessels in the ordinary
course of business and not for speculative purposes, including dispositions of inventory pursuant to, or arising from or related to Intermediation Facilities otherwise permitted by this Agreement;
(d) any Disposition of any Specified Assets in connection with the decommissioning thereof;
(e) other than with respect to Intermediation Facilities, any Dispositions pursuant to buy-sell
arrangements relating to Hydrocarbons in the ordinary course of business and not for speculative purposes solely to the extent the Borrowers deliver an updated Borrowing Base Report reflecting such Disposition;
(f) a transfer of assets or Equity Interests (i) between, among or to Obligors, (ii) between or among Restricted Subsidiaries that
are not Guarantors, (iii) from an Intermediation Subsidiary to any other Person; (iv) from an Obligor or a Restricted Subsidiary to an Intermediation Subsidiary (other than a transfer of Collateral) to the extent such transfer is permitted
by Section 6.9 and so long as no Event of Default has occurred and is continuing, or (v) so long as no Event of Default has occurred and is continuing, any Disposition (other than of Accounts) from
the Par Borrower to an Intermediation Subsidiary to the extent such assets have substantially contemporaneously been contributed and Not Otherwise Applied by Holdings or its Subsidiaries (other than the Par Borrower and its Subsidiaries) and were
otherwise never property of the Par Borrower and its Subsidiaries;
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(g) an issuance of Equity Interests by a Restricted Subsidiary of the Borrower to the
Borrower or to another Restricted Subsidiary;
(h) the sale or other disposition of cash and Cash Equivalents, the unwinding of any Hedge
Obligations or termination of any Hedge Agreement in accordance with the terms thereof;
(i) Dispositions of accounts receivable in
connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(j) a Restricted Payment that is permitted by the covenant set forth in Section 6.7 or a
Permitted Investment;
(k) any sale or disposition of any property or equipment that has become damaged, worn out or obsolete or is no
longer used or useful in the business and any sale or disposition of other property (other than any Refinery) in connection with scheduled turnarounds, maintenance and equipment and facility updates;
(l) the creation of a Lien not prohibited by this Agreement and the disposition of any assets or rights resulting from the enforcement thereof;
(m) any transfer of property (including Retail Property) in connection with a sale and leaseback transaction not to exceed $150,000,000 in
the aggregate for all such transfers during the term of this Agreement;
(n) any issuance of Disqualified Equity Interests pursuant to
Section 6.1 hereof;
(o) any surrender or waiver of contract rights pursuant to a
settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(p) Dispositions of Equity Interests in any
Unrestricted Subsidiary and Investments in Permitted Joint Ventures;
(q) leases or sub-leases and
early terminations of leases or sub-leases relating any convenience stores or any Midstream Assets of the type described in clause (a) of the definition thereof, in each case in the ordinary course of
business;
(r) [reserved]; and
(s) Dispositions in connection with ordinary course refurbishments or exchanges of catalysts, including platinum or similar precious metals and
related products, necessary or useful for the operation of Refineries.
Notwithstanding the foregoing or anything to the contrary herein,
(x) any Disposition in connection with a sale and leaseback transaction will be deemed to have been incurred in reliance only on clause (m) above and (y) any Refinery (other than an Excluded Refinery or Specified Assets) shall only be
disposed of in exchange for consideration in the form of at least 75% cash or Cash Equivalents at the time of such Disposition at least equal to the fair market value of such Refinery, as determined in good faith by the Par Borrower.
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All applicable proceeds of Permitted Dispositions shall be deposited into and maintained in
a Dominion Account to the extent required by Section 5.14(b)(v).
“Permitted
Holdings Payments” means the declaration and payment of dividends, distributions, or other payments (however characterized) by the Par Borrower to Holdings to pay, in each case without duplication:
(a) franchise Taxes, excise Taxes and other fees, Taxes and expenses, in each case, to the extent required to maintain the existence of the Par
Borrower and its Subsidiaries or for the Par Borrower and its Subsidiaries to conduct business in a jurisdiction;
(b) so long as the Par
Borrower is
(x) treated as a pass-through or disregarded entity for Tax purposes, and of which any direct or indirect
parent of the Par Borrower is an owner, member or partner (directly or through one or more entities that are treated as pass-through or disregarded entities for Tax purposes) or
(y) a member of an affiliated, consolidated, combined, unitary or similar group that includes any direct or indirect parent of
the Par Borrower, the amounts of federal, state and local Taxes that are or would be owed (or estimated are or would be owed) by any direct or indirect parent of the Par Borrower or its Subsidiaries, to the extent such Taxes are attributable to the
income, assets or activities of the Borrowers or one or more of the Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts equal to the amounts that would be required to pay such
Taxes to the extent attributable to the income, assets or activities of such Unrestricted Subsidiaries;
(c) with respect to periods Par
Borrower or any of its Subsidiaries is a member of an affiliated, consolidated, combined, unitary or similar group for Tax purposes, payments made under the Tax Sharing Agreement effective April 1, 2014 or June 22, 2022, or any successor
or extended agreement, whether to Holdings or any Affiliate of Holdings and whether renewed as a payment in lieu of taxes, compensation or indemnity, in each case without duplication with payments made under clause (a) or
(b) above;
(d) general corporate administrative, operating and overhead costs and expenses of any direct or indirect parent
of the Par Borrower that are attributable to the Par Borrower and its Subsidiaries;
(e) any Net Cash Proceeds from the Disposition of an
Excluded Refinery or Specified Assets;
(f) (x) salary, bonus and other benefits payable to employees, consultants, directors, officers and
managers of any direct or indirect parent of the Par Borrower and (y) indemnification claims made by employees, consultants, directors, officers and managers of the Par Borrower or any direct or indirect parent of the Par Borrower; and
(g) fees and expenses related to any equity or debt offering or acquisition by any direct or indirect parent of the Par Borrower or its
Subsidiaries (whether or not successful).
“Permitted Holdings Payments (Tax)” means Permitted Holdings Payments
described in clauses (a) through (c) of the definition of the Permitted Holdings Payments (to the extent a payment of taxes).
“Permitted Indebtedness” means:
(a) Indebtedness in respect of the Obligations,
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(b) Indebtedness incurred in the form of any fixed-asset priority financing (including
senior secured notes or a term loan credit facility) and any Refinancing Indebtedness in respect of such Indebtedness, provided, that the aggregate outstanding principal amount of all Indebtedness incurred at any time in accordance
with this clause (b), together with the aggregate principal amount of all Incremental Equivalent Debt incurred at any time in accordance with clause (s) below shall not exceed the Shared Incremental Cap at such time,
provided further, that such Indebtedness:
a.
shall have a final maturity date later than the final maturity date of, and shall have a Weighted Average Life
to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Revolving Loans,
b.
shall not be incurred (or Guaranteed) by a non-Loan Party, and
c.
to the extent secured, (1) (x) such Indebtedness may be secured by Collateral only if such Liens are junior to
the Agent’s Liens and (y) to the extent such Indebtedness is secured by Collateral of the type securing the Obligations as of the Closing Date, such Indebtedness shall not also be secured by any other assets that do not secure the
Obligations (other than assets that the Agent declines to take as Collateral) and (2) to the extent applicable, such Indebtedness shall be subject to one or more Intercreditor Agreements or collateral access agreements, if reasonably requested
by the Agent,
(c) Indebtedness of the Par Borrower and its Restricted Subsidiaries, if the Fixed Charge Coverage Ratio
for the Par Borrower’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would have been at least 2.00:1.00,
determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred at the beginning of such four-quarter period and any Refinancing Indebtedness in respect of such
Indebtedness,
(d) Indebtedness as of the Closing Date set forth on Schedule 4.14 to this Agreement and any Refinancing
Indebtedness in respect of such Indebtedness,
(e) (i) Indebtedness represented by Capitalized Lease Obligations, mortgage financings or
purchase money obligations, in each case, Incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, improvement or lease of property, plant or equipment used or useful in the business
of the Par Borrower or its Restricted Subsidiaries, including any Refinancing Indebtedness in respect of such Indebtedness, in an aggregate amount not to exceed the greater of (x) $200,000,000 and (y) 5.0% of Total Assets (measured at the time of
incurrence) at any time outstanding and
(ii) Permitted Retail Store Purchase Money Indebtedness and,
in each case, any Refinancing Indebtedness in respect of such Indebtedness,
(f) intercompany Indebtedness owing to and held by the Par Borrower or any of its Restricted Subsidiaries (and any Refinancing Indebtedness in
respect of such Indebtedness); provided, however, that:
(i) if the Par Borrower or any
Guarantor (other than an Intermediation Guarantor) is the obligor on such Indebtedness and the obligee is not the Par Borrower or any Guarantor (other than an Intermediation Guarantor), such Indebtedness must be unsecured and expressly subordinated
to the prior payment in full in cash of all Obligations under the Loan Documents pursuant to the Intercompany Subordination Agreement;
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(ii) (A) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the Par Borrower or a Restricted Subsidiary thereof and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Par Borrower or a Restricted
Subsidiary thereof, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Par Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (f); and
(iii) to the extent such Indebtedness is (A) owing to a Loan Party by a Restricted Subsidiary that is not a Loan Party or
(B) owing to a Loan Party that is not an Intermediation Guarantor by an Intermediation Guarantor, in the case of each of clauses (A) and (B), such Indebtedness is otherwise a Permitted Investment (other than
clause (j) thereof),
(g) the Guarantee (i) by any Loan Party in respect of Permitted Indebtedness of any other
Loan Party (other than any Intermediation Guarantor), (ii) by the Par Borrower or any Restricted Subsidiary in respect of Permitted Indebtedness of any non-Guarantor Restricted Subsidiary or Intermediation
Guarantor to the extent such Guarantee constitutes a Permitted Investment and (iii) by any Intermediation Subsidiary of Permitted Indebtedness,
(h) Indebtedness arising in connection with the endorsement of instruments or other Payment Items for deposit,
(i) the Incurrence by the Par Borrower or any of its Restricted Subsidiaries of Indebtedness arising from agreements providing for
indemnification, earn-outs, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Par Borrower or any of its Restricted Subsidiaries pursuant to
such agreements, in any case Incurred in connection with the Permitted Dispositions (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition) or Permitted Investments,
(j) Indebtedness owed to any Person providing property, casualty, liability, or
other insurance to any Loan Party or any of its Subsidiaries in the ordinary course of business, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such
insurance for the policy or fiscal year in which such Indebtedness is incurred,
(k) the Incurrence by the Par Borrower or any of its
Restricted Subsidiaries of (i) Hedge Obligations consisting of transactions for the purchase, sale or exchange of Hydrocarbons of the types used or produced by the Par Borrower and its Restricted Subsidiaries, (ii) any other Hedge
Obligations provided, that, in the case of clause (ii) such obligations are (or were) entered into for the purpose of mitigating risks associated with liabilities, commitments, investments, assets, or property held
or reasonably anticipated by the Par Borrower and its Restricted Subsidiaries, or changes in the value of securities issued by the Par Borrower and its Restricted Subsidiaries, and not for purposes of speculation, or (iii) Hedge Obligations
secured on a pari passu basis with any Priority Fixed Debt or Incremental Equivalent Debt,
(l) unsecured Indebtedness of any Loan
Party owing to employees, former employees, former officers, directors, or former directors (or any spouses, ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase or
redemption by such Loan Party of the Equity Interests of Borrower that has been issued to such Persons, so long as the aggregate amount of all such Indebtedness outstanding at any one time does not exceed $10,000,000,
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(m) unsecured Indebtedness incurred in respect of netting services, overdraft protection,
and other like services, in each case, incurred in the ordinary course of business,
(n) Indebtedness constituting Guarantees of the
Indebtedness of Permitted Joint Ventures and Unrestricted Subsidiaries in an aggregate outstanding principal amount not to exceed the greater of (x) $100,000,000 and (y) 2.50% of Total Assets (measured at the time of incurrence),
(o) Indebtedness in connection with an operating lease or consignment, or sale-leaseback transaction otherwise permitted under this Agreement
in an aggregate principal amount not to exceed $150,000,000 at any time outstanding,
(p) to the extent constituting Indebtedness, buy-sell arrangements (other than Intermediation Facilities) with respect to Hydrocarbons, Renewable Identification Numbers and biodiesel credits incurred in the ordinary course of business and not for speculative
purposes,
(q) (i) to the extent constituting Indebtedness, obligations of Par Hawaii Refining (only under the PHR Intermediation Facility
with respect to Par Hawaii Refining) and Intermediation Subsidiaries with respect to Intermediation Facilities otherwise permitted under this Agreement, in each case incurred in the ordinary course of business and not for speculative purposes; and
(ii) the unsecured guarantee of Par Borrower of (A) obligations under the PHR Intermediation Facility, and
(B) any other Intermediation Facility on substantially similar terms as its unsecured guarantee of the PHR Intermediation Facility (or on such other terms as the Agent may agree in its Permitted Discretion),
(r) accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case, on
Indebtedness that otherwise constitutes Permitted Indebtedness,
(s) Indebtedness of the Borrowers in respect of one or more series of
senior secured (on a pari passu basis) loans or notes (whether issued in a public offering, under Rule 144A of the Securities Act or in another private placement, or borrowing or otherwise) (and including any bridge financings in lieu of such
notes) or unsecured “mezzanine” loans or notes or senior unsecured or subordinated loans or notes, in each case, pursuant to an indenture, interim agreement, loan agreement, note purchase agreement or otherwise and any extensions,
renewals, refinancings and replacements thereof, including in the case of any such notes, any Registered Equivalent Notes (the “Incremental Equivalent Debt”), provided, that the aggregate outstanding principal
amount of all Incremental Equivalent Debt incurred at any time in accordance with this clause (s), together with the aggregate principal amount of all Indebtedness incurred at any time in accordance with clause
(b) above shall not exceed the Shared Incremental Cap at such time, provided further, that such Incremental Equivalent Debt
a.
shall have a final maturity date later than the final maturity date of, and shall have a Weighted Average Life
to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Revolving Loans,
b.
shall not be incurred (or Guaranteed) by a non-Loan Party, and
c.
to the extent secured, (1) (x) such Indebtedness may be secured by Collateral only if such Liens are junior to
the Agent’s Liens and (y) to the extent such Indebtedness is secured by Collateral of the type securing the Obligations as of the Closing Date, such Indebtedness shall not also be secured by any other assets that do not secure the
Obligations (other than assets that the Agent declines to take as Collateral), and (2) to the extent applicable, such Indebtedness shall be subject to one or more Intercreditor Agreements or collateral access agreements, if reasonably requested by
the Agent,
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(t) Indebtedness incurred in connection with an acquisition, provided, that,
on a pro forma basis, after giving effect to the incurrence thereof, (x) the Par Borrower could Incur at least $1.00 of Indebtedness under clause (c) above or (y) the Fixed Charge Coverage Ratio for the Par Borrower is
higher than immediately prior to such transaction and any Refinancing Indebtedness in respect of such Indebtedness,
(u) to the extent (if
any) constituting Indebtedness, customary credit support, capital contributions and/or indemnities in respect of tax credit monetization transactions (including monetization of tax credits under Section 45Q or Section 45Z of the IRC or
other similar tax credits via tax equity partnership flip transactions, tax credit transfers, preferred equity monetizations or otherwise) solely to the extent the Borrowers deliver an updated Borrowing Base Report reflecting such Indebtedness,
(v) Indebtedness up to an aggregate principal amount not to exceed the greater of (x) $200,000,000 and (y) 5.0% of Total Assets (measured at
the time of incurrence),
(w) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations
or with respect to workers’ compensation claims, in each case Incurred in the ordinary course of business, and reimbursement obligations in respect of the foregoing,
(x) the Incurrence by the Par Borrower or any of its Restricted Subsidiaries of Indebtedness consisting of letters of credit issued in the
ordinary course of business or reimbursement obligations in respect thereof; provided that upon the drawing upon such letters of credit, such obligations are reimbursed within 30 days following such drawing, and
(y) Indebtedness incurred in connection with ordinary course operating leases or consignments, refurbishments or exchanges of catalysts,
including platinum or similar precious metals and related products, necessary or useful for the operation of the Refineries.
The
Borrowers will not Incur any Indebtedness that is subordinate in right of payment to any other Indebtedness of the Borrowers unless it is subordinate in right of payment to the Loans to the same extent. The Par Borrower will not permit any Guarantor
to Incur any Indebtedness that is subordinate in right of payment to any other Indebtedness of such Guarantor unless it is subordinate in right of payment to such Guarantor’s Guarantee of the Loans to the same extent. For purposes of the
foregoing, no Indebtedness will be deemed to be subordinated in right of payment to any other Indebtedness of the Borrowers or any Guarantor, as applicable, solely by reason of any Liens or Guarantees arising or created in respect thereof or by
virtue of the fact that the holders of any secured Indebtedness have entered into any intercreditor agreements giving one or more of such holders priority over the other holders in the collateral held by them.
Notwithstanding the foregoing or anything to the contrary herein, all Indebtedness incurred under the Loan Documents will be deemed to have
been incurred in reliance only on clause (a) above, all Priority Fixed Debt will be deemed to have been incurred in reliance only on clause (b) or (s) above, and all
Indebtedness in respect of Hedge Obligations will be deemed to have been incurred in reliance only on clause (k) above. For purposes of determining compliance with Section 6.1, except
with respect to clauses (b) and (k) above, in the event that any proposed Indebtedness meets the criteria of more than one of the categories described in clauses (d) through (u)
above, or is entitled to be Incurred pursuant to clause (c) above, the Borrowers will be permitted to classify such item of Indebtedness at the time of its Incurrence in any manner that complies with this definition and
Section 6.1. In addition, except with respect to clauses
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(b) and (k) above, any Indebtedness originally classified as Incurred pursuant to clauses (d) through (u) above may later be
reclassified by the Borrowers such that it will be deemed as having been incurred pursuant to another of such clauses or pursuant to clause (c) above to the extent that such reclassified Indebtedness could be Incurred pursuant to
such new clause at the time of such reclassification. Notwithstanding the foregoing or anything to the contrary herein, the maximum amount of Indebtedness that may be Incurred pursuant to Section 6.1
will not be deemed to be exceeded with respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange rates of currencies.
“Permitted Investments” means:
(a) Investments in a Borrower or in a Guarantor (other than an Intermediation Guarantor);
(b) Investments in any non-Guarantor Restricted Subsidiary made by another non-Guarantor Restricted Subsidiary, and Investments in any Intermediation Guarantor made by another Intermediation Guarantor;
(c) Investments existing on the Closing Date;
(d) Investments in cash and Cash Equivalents;
(e) any Investment by the Par Borrower or any Restricted Subsidiary in a Person, if as a result of such Investment:
(i) such Person becomes a Guarantor (other than an Intermediation Guarantor) or an Immaterial Subsidiary; or
(ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets
to, or is liquidated into, a Borrower or a Guarantor (other than an Intermediation Guarantor);
(f) any Investment made as a result of the
receipt of non-cash consideration from a Disposition that was made pursuant to and in compliance with, or in connection with a Disposition of assets permitted under
Section 6.4 (other than clause (j) of the definition of “Permitted Disposition”);
(g) Hedge Obligations that are otherwise permitted under this Agreement;
(h) stock, obligations or securities received in satisfaction of claims or judgments, in compromise or settlement of debts created in the
ordinary course of business, or by reason of a composition or readjustment of debts or reorganization of another Person;
(i) Investments
made in exchange for Equity Interests (other than Disqualified Equity Interests) of the Par Borrower, Holdings or any other direct or indirect parent of the Par Borrower;
(j) advances or other loans to customers or suppliers in the ordinary course of business and endorsements for collection or deposit arising in
the ordinary course of business;
(k) commission, payroll, travel and similar advances to officers and employees of the Par Borrower or any
of its Restricted Subsidiaries that are expected at the time of such advance ultimately to be recorded as an expense in conformity with GAAP;
(l) any Guarantee permitted to be Incurred under Section 6.1;
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(m) Investments in non-Guarantor Restricted
Subsidiaries, Unrestricted Subsidiaries, Intermediation Guarantors and Permitted Joint Ventures, taken together, up to an aggregate amount not to exceed the greater of (x) $100,000,000 and (y) 2.50% of Total Assets, at the time of Investment (net
of, with respect to the Investment in any particular Person, the cash return thereon received after the Closing Date as a result of any sale for cash, repayment, redemption, liquidating distribution or other cash realization, not to exceed the
amount of Investments in such Person made after the Closing Date in reliance on this clause); provided that if any Investment pursuant to this clause is made in any Person that is not a Restricted Subsidiary of the Par Borrower
and a Guarantor on the date of making such Investment and such Person becomes a Restricted Subsidiary of the Par Borrower and a Guarantor that is not an Intermediation Subsidiary after such date, such Investment shall thereafter be deemed to have
been made pursuant to clause (a) above and shall cease to have been made pursuant to this clause for so long as such Person continues to be a Restricted Subsidiary and a Guarantor that is not an Intermediation Subsidiary;
(n) Investments if the Payment Conditions have been satisfied;
(o) Investments of cash made by the Par Borrower to any Intermediation Subsidiary so long as such Investment is funded with the substantially
contemporaneous contribution of cash Not Otherwise Applied to the Par Borrower by Holdings or its Subsidiaries (other than the Par Borrower and its Subsidiaries), and in the case of a loan, are subject to the Intercompany Subordination Agreement;
(p) equity Investments by any Loan Party in any Restricted Subsidiary of such Loan Party which is required by law to maintain a minimum
net capital requirement or as may be otherwise required by Applicable Law;
(q) to the extent (if any) constituting Investments, customary
credit support, capital contributions and/or indemnities in respect of tax credit monetization transactions (including monetization of tax credits under Section 45Q or Section 45Z of the IRC or other similar tax credits via tax equity
partnership flip transactions, tax credit transfers, preferred equity monetizations or otherwise) solely to the extent the Borrowers deliver an updated Borrowing Base Report reflecting such Investment;
(r) Investments (other than any Investment in an Unrestricted Subsidiary) of a Restricted Subsidiary acquired after the Closing Date or of a
Person merged or amalgamated or consolidated into any Borrower or a Restricted Subsidiary as permitted hereunder after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition,
merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation; provided, that the Loan Parties shall be in compliance with Section 6.3 after giving effect
thereto;
(s) Dispositions pursuant to buy-sell arrangements relating to Hydrocarbons in the
ordinary course of business and not for speculative purposes; and
(t) Investments up to an aggregate amount at any one time outstanding
not to exceed the greater of (x) $200,000,000 and (y) 5.0% of Total Assets at the time of Investment (net of, with respect to the Investment in any particular Person, the cash return thereon received after the Closing Date as a result of any sale
for cash, repayment, redemption, liquidating distribution or other cash realization, not to exceed the amount of Investments in such Person made after the Closing Date in reliance on this clause); provided that if any Investment
pursuant to this clause is made in any Person that is not a Restricted Subsidiary of the Par Borrower and a Guarantor on the date of making such Investment and such Person becomes a Restricted Subsidiary of the Par Borrower and a Guarantor that is
not an Intermediation Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (a) above and shall cease to have been made pursuant to this clause for so long as such Person
continues to be a Restricted Subsidiary and a Guarantor that is not an Intermediation Subsidiary after such date;
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provided, that Permitted Investments shall not include any Investments with a Refinery (other
than any Excluded Refinery) in or to any Person (other than a Loan Party or a Restricted Subsidiary).
“Permitted Joint
Venture” means any Person (other than a Restricted Subsidiary) in which the Par Borrower owns (including ownership through its Restricted Subsidiaries) Equity Interests representing less than 100% of the total outstanding Equity
Interests of such Person; provided, that such Person is engaged only in the businesses that are permitted for the Par Borrower and its Restricted Subsidiaries pursuant to
Section 6.5.
“Permitted Liens” means:
(a) Liens granted to, or for the benefit of, Agent to secure the Obligations,
(b) Liens securing Priority Fixed Debt and related obligations and any Refinancing Indebtedness in respect thereof, in each case, incurred
pursuant to clause (b) or (s) of the definition of “Permitted Indebtedness”, so long as such Indebtedness and other obligations are subject to the applicable Intercreditor Agreement;
provided, that such Liens shall only be first priority Liens in respect of Priority Fixed Debt Collateral; provided, further that the Other Debt Representative of the holders of each such Indebtedness becomes party to the applicable
Intercreditor Agreement,
(c) Liens on property of a Person existing at the time such Person is merged with or into or consolidated with
the Par Borrower or any Restricted Subsidiary of the Borrower; provided, that such Liens were not created in contemplation of such merger or consolidation and do not extend to any assets other than those of the Person merged
into or consolidated with the Par Borrower or the Restricted Subsidiary (other than pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition on property acquired thereafter of the type that would
have been subject to such Lien notwithstanding the occurrence of such acquisition and securing the obligations to which the original Liens relate),
(d) Liens on property existing at the time of acquisition thereof by the Par Borrower or any Restricted Subsidiary of the Par Borrower;
provided, that such Liens were not created in contemplation of such acquisition and do not extend to any property other than the property so acquired by the Borrower or the Restricted Subsidiary (other than pursuant to after-acquired
property clauses in effect with respect to such Lien at the time of acquisition on property acquired thereafter of the type that would have been subject to such Lien notwithstanding the occurrence of such acquisition and securing the obligations to
which the original Liens relate),
(e) Liens for unpaid Taxes that either (i) are not yet delinquent, or (ii) the underlying
Taxes are the subject of Permitted Protests,
(f) judgment Liens arising solely as a result of the existence of judgments, orders,
requirements to pay issued by a Governmental Authority or awards that do not constitute an Event of Default under Section 7.3 of this Agreement and notices of lis pendens and associated
rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made,
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(g) Liens existing on the Closing Date and, in the case of any such Liens securing
Indebtedness with a principal amount in excess of $5,000,000, such Liens are set forth on Schedule B-1 to this Agreement, and any modifications, replacements, renewals, restructurings,
refinancings or extensions (but not increases other than fees, expenses and unpaid interest) thereof; provided, that to qualify as a Permitted Lien, any such Lien described on Schedule
B-1 to this Agreement shall only secure the Indebtedness that it secures on the Closing Date and any Refinancing Indebtedness in respect thereof,
(h) the interests of lessors under operating leases and licensors under license agreements,
(i) Liens securing Indebtedness permitted to be incurred pursuant to clause (e)(i) of the definition of “Permitted
Indebtedness”; provided, that any such Lien (x) covers only the assets acquired, constructed, installed or improved with such Indebtedness and related contracts, intangibles, and other assets that are incidental
thereto (including improvements, accessions thereto and replacements thereof and proceeds and products thereto) and (y) is created within 365 days of such acquisition, construction, installation or improvement and
(ii) Liens securing Permitted Retail Store Purchase Money Indebtedness; provided, that, any such Liens (x) apply
only to the assets acquired, developed or constructed with such Indebtedness and related contracts, intangibles, and other assets that are incidental thereto (including improvements, accessions thereto and replacements thereof and proceeds and
products thereto) and customarily included in a real estate mortgage, and (y) are created within 365 days of such acquisition or construction,
(j) Liens on cash and Cash Equivalents (other than Eligible Cash) securing Indebtedness permitted to be incurred pursuant to clause
(k) of the definition of “Permitted Indebtedness”,
(k) Liens arising by operation of law in favor
of warehousemen, landlords, carriers, mechanics, materialmen, laborers, or suppliers, or other similar Liens, incurred in the ordinary course of business and not in connection with the borrowing of money, and which Liens either (i) are for sums
not yet delinquent, which are not overdue for a period of more than sixty (60) days, or (ii) are the subject of Permitted Protests,
(l) Liens on amounts deposited in the ordinary course of business to secure the Par Borrower’s and its Subsidiaries’ obligations in
connection with worker’s compensation or other unemployment insurance or to secure public or statutory obligations,
(m) Liens on
amounts deposited to secure the Borrower’s and its Subsidiaries’ obligations in connection with the making or entering into of bids, tenders, contracts (other than contracts for the payment of Indebtedness), leases, letters of credit (or
reimbursement obligations in respect thereof) or other similar obligations arising in the ordinary course of business,
(n) Liens on
amounts deposited to secure the Borrower’s and its Subsidiaries’ reimbursement obligations with respect to surety, performance, release, appeal or similar bonds obtained in the ordinary course of business,
(o) with respect to any Real Property, survey exceptions, defects in title, encumbrances, easements, encroachments, rights of way, zoning
restrictions and other restrictions that do not materially and adversely interfere with the ordinary conduct of the business of the Loan Parties and their Restricted Subsidiaries, taken as a whole,
(p) non-exclusive licenses of patents, trademarks, copyrights, and other intellectual property rights
in the ordinary course of business,
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(q) Liens that are replacements of Permitted Liens to the extent that the original
Indebtedness is the subject of permitted Refinancing Indebtedness and so long as the replacement Liens only encumber those assets or types or classes of assets that secured the original Indebtedness or under written agreements pursuant to which the
original Liens arose, could have secured the original Indebtedness (plus improvements, accessions and replacements to such property or proceeds and products thereof),
(r) rights of setoff or bankers’ liens upon deposits of funds in favor of banks or other depository institutions, solely to the extent
incurred in connection with the maintenance of such Deposit Accounts in the ordinary course of business,
(s) Liens granted in the
ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness,
(t) Liens solely on any cash earnest money deposits made by a Loan Party or any of its Subsidiaries in connection with any letter of intent or
purchase agreement with respect to an Acquisition,
(u) (i) Liens securing Indebtedness and other obligations under any Intermediation
Document (including the Hedge Agreements with respect to any Intermediation Facility), so long as such Liens solely extend to Intermediation Collateral and (ii) Liens on Cash and Cash Equivalents of Par Hawaii Refining and any Intermediation
Subsidiaries constituting Intermediation Collateral, in each case, securing obligations in respect of Intermediation Cash Management Services; provided, that in the case of Par Hawaii Refining, (A) any Liens granted pursuant to this
clause (u) shall secure obligations only in connection with the PHR Intermediation Facility for the Par Hawaii Refinery and (B) the only Cash and Cash Equivalents of Par Hawaii Refining subject to Liens under this clause (u) shall be
the Cash and Cash Equivalents (i) held in an Excluded Intermediation Account, (ii) constituting PHR Margin or (iii) posted to a Hedge Agreement counterparty as collateral pursuant to a Hedge Agreement with respect to an Intermediation
Facility, in each case, in the ordinary course of business in an aggregate amount not to exceed an amount agreed between Par Hawaii Refining and the Agent, provided, that the Agent has posted the agreed amount under this clause
(B) to the Lenders and the Agent has not received written notice of objection to such amount from the Lenders comprising the Required Lenders by the fifth Business Day after such posting.
(v) Liens securing Incremental Equivalent Debt and any Refinancing Indebtedness in respect thereof, in each case, incurred pursuant to
clause (s) of the definition of “Permitted Indebtedness”,; provided, that such Liens shall only be first priority Liens in respect of Priority Fixed Debt Collateral; provided, further
that the Other Debt Representative of the holders of each such Indebtedness becomes party to the applicable Intercreditor Agreement,
(w) [reserved],
(x) Liens
(i) in favor of any Borrower or any Guarantor (other than an Intermediation Guarantor), (ii) of any non-Obligor Restricted Subsidiary in favor of any non-Obligor
Restricted Subsidiary (other than any Intermediation Subsidiary) and (iii) of any Intermediation Subsidiary in favor of any Restricted Subsidiary,
(y) Liens securing Indebtedness permitted to be incurred pursuant to clause (v) of the definition of “Permitted
Indebtedness”, any Guarantees of such Indebtedness, and Liens that do not secure Indebtedness, so long as the aggregate principal amount of the Indebtedness and other obligations secured under this clause (y) do not
exceed the greater of (x) $200,000,000 and (y) 5.0% of Total Assets (measured at the time of incurrence),
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(z) Liens on the Equity Interests of Unrestricted Subsidiaries or Permitted Joint Ventures,
(aa) Liens on, related to, properties to secure all or part of the costs incurred in the ordinary course of business of exploration,
drilling, development or operation thereof,
(bb) Liens on pipeline or pipeline facilities which arise out of operation of law,
(cc) Liens reserved in oil and gas mineral leases for bonus or rental payments and for compliance with the terms of such leases, and Liens
arising under partnership agreements, oil and gas leases, farm-out agreements, division orders, contracts for the sale, purchase, exchange, transportation or processing of oil, gas or other hydrocarbons,
unitization and pooling declarations and agreements, development agreements, operating agreements, area of mutual interest agreements, and other agreements which are customary in any business in which the Borrower and its Restricted Subsidiaries are
permitted to engage in pursuant to this Agreement,
(dd) Liens arising from precautionary UCC financing statements regarding operating
leases or consignments and “protective” Liens granted in connection with sales permitted hereunder (including sale-leaseback transactions permitted hereunder) that are intended to be “true sales”, or bailment, storage or
similar arrangements in which a counterparty holds title to the assets that are the subject of such transaction, including precautionary UCC financing statement filings made in respect of crude oil and slop maintained, as owner, by the
Intermediation Counterparty in connection with the PHR Intermediation Facility, which Liens are intended to protect the Intermediation Counterparty in the event that such transaction is recharacterized as a secured financing and attach only to the
assets that are subject of such transaction,
(ee) Liens of franchisors in the ordinary course of business not securing Indebtedness,
(ff) Liens incurred in the ordinary course of business not in the aggregate materially detracting from the value of the properties or their use
in the operation of the business of the Par Borrower and its Restricted Subsidiaries,
(gg) Liens on the assets of any non-Guarantor Restricted Subsidiary securing Indebtedness or other obligations of such Subsidiaries that were permitted by the terms of this Agreement to be incurred,
(hh) Liens on metals and the right to receive metals arising out of an operating lease or consignment, or sale-leaseback of a catalyst
necessary or useful for the operation of refinery assets of the Borrower and its Restricted Subsidiaries, securing obligations of the Borrower or a Restricted Subsidiary in respect of such lease, consignment, or sale-leaseback transaction,
provided, that, such Liens do not encumber any assets other than the catalyst and the related metals and proceeds of the foregoing; provided, further, that such operating lease or consignment, or
sale-leaseback of a catalyst shall be entered into in the ordinary course of business and not for speculative purposes,
(ii) Liens of any
Governmental Authority on any trust account established for the benefit of an environmental agency or department to the extent required under Applicable Law,
(jj) Liens incurred in connection with ordinary course refurbishments or exchanges of catalysts, including platinum or similar precious metals
and related products, necessary or useful for the operation of the Refineries,
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(kk) statutory Liens securing First Purchase Crude Payables arising in the ordinary course
of business which are not overdue, and
(ll) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment
of customs duties in connection with the importation of goods.
Notwithstanding the foregoing, all Liens incurred under the Loan Documents
will be deemed to have been incurred in reliance only on clause (a) above, and all incurred Liens securing Priority Fixed Debt will be deemed to have been incurred in reliance only on clause
(b) above.
“Permitted Protest” means the right of any Loan Party or any of its Subsidiaries
to protest any Lien (other than any Lien that secures the Obligations), Taxes, or rental payment; provided, that (a) a reserve with respect to such obligation is established on such Loan Party’s or its Subsidiaries’
books and records in such amount as is required under GAAP and (b) any such protest is being contested in good faith by appropriate proceedings.
“Permitted Retail Store Purchase Money Indebtedness” means, as of any date of determination, Purchase Money
Indebtedness incurred for the purpose of financing all or any part of the purchase price or cost of acquisition, improvement, or construction or development of retail stores to be operated by the Par Borrower or a Restricted Subsidiary, in an
aggregate amount not to exceed the greater of (x) $100,000,000 and (y) two and one-half percent (2.5%) of Total Assets (measured at the time of incurrence) at any time outstanding.
“Person” means natural persons, corporations, limited liability companies, unlimited liability companies, limited
partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments and agencies and political
subdivisions thereof.
“Petroleum Inventory” means Inventory consisting of refined petroleum products, crude
oil, other feedstock, intermediates, condensate, natural gas liquids, liquefied petroleum gases, asphalt, other hydrocarbons, ethanol, biofuels, other renewable fuels, renewable feedstocks, or any blend thereof.
“PHR Borrowing Base” means, at any time after all of the PHR Intermediation Facility has been cancelled or
terminated, any portion of the Borrowing Base attributable or to be attributable to Hydrocarbons from Par Hawaii Refining and any of its Subsidiaries.
“PHR Intermediation Collateral” has the meaning assigned to the term “Collateral” under the PHR
Intermediation Agreement; provided, that such “Collateral” definition (including any amendments, modifications and changes thereto) shall be satisfactory to Agent in its Permitted Discretion.
“PHR Intermediation Facility” means that certain supply and offtake master agreement (the “PHR
Intermediation Agreement”) to be entered into by and between Par Hawaii Refining and the intermediation counterparty party thereto, together with all related terminaling agreements, transportation agreements, storage agreements,
services agreements, trading agreements, marketing and sales agreements, agency agreements, security agreements, account control agreements, intercreditor agreements, other collateral documents, the Hedge Agreements, and other ancillary agreements
among such parties, in each case as any of the same may be extended, renewed, amended, supplemented, restated, amended and restated or otherwise modified from time to time, or refinanced and/or replaced with an Intermediation Facility under
clause (d) thereof from time to time and in whole or in part; provided that (i) no PHR Intermediation Facility shall provide for any lien on any assets other than the PHR Intermediation Collateral,
(ii) none of Par Borrower or its Restricted Subsidiaries, other than Par Hawaii Refining, shall enter into (or otherwise be a
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party and/or provide credit support for) the PHR Intermediation Facility (other than a guarantee thereof by Par Borrower to the extent permitted by clause (q)(ii) of the definition
of “Permitted Indebtedness”), (iii) each Intermediation Counterparty with respect thereto and each Loan Party and each Restricted Subsidiary party to such Intermediation Facility shall be a party to the applicable
Intercreditor Agreement and (iv) the PHR Intermediation Facility as of the date it is entered into shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.
“PHR Margin” means, collectively, any margin in the form of cash or Cash Equivalents posted or transferred to the
Intermediation Counterparty by Par Hawaii Refining subject to and in accordance with the PHR Intermediation Facility.
“Platform” has the meaning specified therefor in Section 16.9(c) of
this Agreement.
“Post-Increase Revolver Lenders” has the meaning specified therefor in
Section 2.14(e) of this Agreement.
“Post Supplier Payment
Period” shall mean the period commencing on the date on which a Borrower shall have paid in full all amounts owed for the purchase of Petroleum Inventory (the “Full Payment Date”), the payment for which was
supported by a standby Letter of Credit issued specifically for such purpose and ending on the earlier of (a) three Business Days after the Full Payment Date and (b) the date the original of such standby Letter of Credit is returned to the
applicable Issuing Lender for cancellation with such instructions for cancellation as such Issuing Lender may require.
“Pre-Increase Revolver Lenders” has the meaning specified therefor in Section 2.14(e) of this Agreement.
“Prime Rate” has the meaning specified therefor in the definition of “Base Rate”.
“Priority Fixed Debt” means Indebtedness incurred or existing pursuant to clause (b) of the definition of
“Permitted Indebtedness”.
“Priority Fixed Debt Collateral” means “Term Priority
Collateral” as defined in the applicable Intercreditor Agreement.
“Pro Rata Share” means, as of any date
of determination:
(a) with respect to a Lender’s obligation to make all or a portion of the Revolving Loans, with respect to such
Lender’s right to receive payments of interest, fees, and principal with respect to the Revolving Loans, and with respect to all other computations and other matters related to the Revolver Commitments or the Revolving Loans, the percentage
obtained by dividing (i) the Revolving Loan Exposure of such Lender, by (ii) the aggregate Revolving Loan Exposure of all Lenders,
(b) with respect to a Lender’s obligation to participate in the Letters of Credit, with respect to such Lender’s obligation to
reimburse Issuing Bank, and with respect to such Lender’s right to receive payments of Letter of Credit Fees, and with respect to all other computations and other matters related to the Letters of Credit, the percentage obtained by dividing
(i) the Revolving Loan Exposure of such Lender, by (ii) the aggregate Revolving Loan Exposure of all Lenders; provided, that if all of the Revolving Loans have been repaid in full and all Revolver Commitments have been terminated, but
Letters of Credit remain outstanding, Pro Rata Share under this clause shall be the percentage obtained by dividing (A) the Letter of Credit Exposure of such Lender, by (B) the Letter of Credit Exposure of all Lenders, and
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(c) with respect to all other matters and for all other matters as to a particular Lender
(including the indemnification obligations arising under Section 14.7 of this Agreement), the percentage obtained by dividing (i) the Revolving Loan Exposure of such Lender, by (ii) the
aggregate Revolving Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to Section 12.1; provided, that if all of
the Loans have been repaid in full and all Commitments have been terminated, Pro Rata Share under this clause shall be the percentage obtained by dividing (A) the Letter of Credit Exposure of such Lender, by (B) the Letter of Credit
Exposure of all Lenders.
“Projections” means the Par Borrower’s forecasted (a) consolidated balance
sheets, (b) consolidated profit and loss statements, and (c) consolidated cash flow statements, all prepared on a basis consistent with the Par Borrower’s historical financial statements, together with appropriate supporting details
and a statement of underlying assumptions.
“Property” means, any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
“Protective Advances” has the meaning specified
therefor in Section 2.3(d)(i) of this Agreement.
“PTE” means a
prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified therefor in Section 16.9(c)
of this Agreement.
“Purchase Money Indebtedness” means Indebtedness (other than the Obligations, but including
Capitalized Lease Obligations), incurred at the time of, or within three hundred and sixty-five (365) days after, the acquisition, improvement or construction of any fixed assets for the purpose of financing all or any part of the acquisition,
improvement or construction cost thereof.
“Qualified Equity Interests” means and refers to any Equity Interests
issued by the Par Borrower (and not by one or more of its Subsidiaries) that is not a Disqualified Equity Interest.
“Real
Property” means any estates or interests in real property now owned or leased or hereafter acquired or leased by any Loan Party or one of its Restricted Subsidiaries and the equipment and fixtures thereon and the improvements thereto.
“Receivables” means, as to an Obligor, all accounts receivable, whether billed or unbilled, and all rights to
payment from any Credit Card Issuer or Credit Card Processor, in each case, arising out of the sale of Inventory in the Ordinary Course of Business.
“Recipient” means (a) the Agent or (b) any Lender, as applicable.
“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
“Reference Period” has the meaning specified therefor in the definition
of “EBITDA”.
“Refinancing” has the meaning specified therefor on Schedule
3.1.
“Refinancing Indebtedness” means any Indebtedness of the Borrowers or any of their Restricted
Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, substitute for or refund other Indebtedness of the Borrowers or any of their Restricted Subsidiaries (other than intercompany
Indebtedness); provided, that:
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(a) such refinancings, renewals, or extensions do not result in an increase in the principal
amount of the Indebtedness so refinanced, renewed, or extended, other than by the amount of premiums paid thereon, accrued and unpaid interest on account thereof and the fees and expenses incurred in connection therewith and by the amount of
unfunded commitments with respect thereto,
(b) if this Agreement restricted the maturity date of such Indebtedness being refinanced,
renewed or extended, such refinancings, renewals, or extensions has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded,
(c) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to the Loans, such Refinancing Indebtedness is subordinated in right of payment to the Loans, on terms at least as favorable, taken as a whole, to the Lenders as those
contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;
(d) such
Indebtedness is Incurred by either (i) the Restricted Subsidiary that is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded or (ii) a Borrower or a Guarantor;
(e) such Indebtedness is not secured by any collateral (other than those assets or types or classes of assets that secured (or, under written
agreements pursuant to which the original Liens arose could have secured) the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded and to the extent that the Indebtedness being refinanced was (or was required to be) subject
to any Intercreditor Agreement, the holders of such Refinancing Indebtedness (if such Indebtedness is secured) or an Other Debt Representative on their behalf, shall become party to such Intercreditor Agreements, in each case providing for the same
(or lesser) lien priority;
(f) such Indebtedness is not Guaranteed by any Person that did not Guarantee the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded; and
(g) the material terms (other than pricing and yield and optional prepayment or
redemption provisions) of such Refinancing Indebtedness or of any agreement entered into or of any instrument issued in connection therewith are not, in the aggregate, less favorable in any material respect to the Loan Parties or the Lenders than
the terms of any agreement or instrument governing the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (except for (A) covenants and other provisions applicable only to periods after the Latest Maturity Date,
(B) terms that are added for the benefit of the Secured Parties hereunder (it being understood that no consent shall be required from the Agent or any of the Lenders to the extent that such terms are also added for the benefit of each Secured
Parties) or (C) updates to reflect market conditions as determined in good faith by the Par Borrower).
“Refined
Products” means, all gasoline, diesel, aviation fuel, fuel oil, propane, ethanol, transmix, butane, isobutane, NAPTHA and other products processed, refined or blended from Feedstocks and Intermediate Products.
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“Refineries” means, collectively, (a) the Par Hawaii
Refinery, (b) the USOR Refinery, (c) the Wyoming Refinery, (d) the Billings Refinery and (e) each other refinery acquired or constructed by the Par Borrower or a Restricted Subsidiary of the Par Borrower after the Closing Date.
“Register” has the meaning specified therefor in Section 12.1(h)
of this Agreement.
“Registered Equivalent Notes” means, with respect to any notes originally issued in an
offering pursuant to Rule 144A under the Securities Act of 1933 or other private placement transaction under the Securities Act of 1933, substantially identical notes (having the same Guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Registered Loan” has the meaning specified therefor in
Section 12.1(h) of this Agreement.
“Related Fund” means any
Person (other than a natural person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
“Release” means any depositing, spilling, leaking, pumping, pouring, placing, emitting, discarding, abandoning,
emptying, discharging, migrating, injecting, escaping, leaching, dumping, or disposing in, into, or through the indoor or outdoor environment.
“Relevant Governmental Body” means the FRB or the Federal Reserve Bank of New York, or a committee officially
endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto.
“Remedial
Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address a Release of Hazardous Materials in the indoor or outdoor environment (excluding routine
monitoring or sampling of permitted Releases), (b) prevent or minimize a Release or threatened Release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health, safety, or welfare or the indoor or outdoor
environment, (c) restore or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or
(e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws.
“Renewable
Identification Number” means a thirty-eight (38) character numeric code that is generated by the producer or importer of renewable fuel representing gallons of renewable fuel produced/imported and assigned to batches of renewable
fuel that are transferred to others such that a change of ownership is effected, or any similar successor instrument thereof.
“Rent and Charges Reserve” means reserves which may be taken by the Agent in its Permitted Discretion with respect
to Eligible Refinery Hydrocarbon Inventory, Eligible Merchandise Inventory, Eligible Lubricants Inventory, Eligible In-Transit Crude Oil and Eligible In-Transit Products
in an amount up to the aggregate of, without duplication,
(a) all past due rent, storage, transportation, terminaling and other amounts
owing by a Borrower to any landlord, warehouseman, terminal owner or operator, pipeline, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Eligible Refinery Hydrocarbon Inventory, Eligible
Merchandise Inventory, Eligible Lubricants Inventory, Eligible In-Transit Crude Oil or Eligible In-Transit Products or could assert a Lien on any such Inventory, and
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(b) if the owner or operator of a facility, pipeline or other location where any Eligible
Refinery Hydrocarbon Inventory, Eligible Merchandise Inventory, Eligible Lubricants Inventory, Eligible In-Transit Crude Oil or Eligible In-Transit Products is located
has not subordinated all Liens that are or may be held by it on such Inventory and granted access to such Inventory pursuant to an agreement satisfactory to the Agent, an amount equal to one month of rent, storage, terminaling, transportation and
other amounts payable to the applicable owner or operator of such facility, pipeline or other location;
provided that any Rent and Charges
Reserve taken with respect to any location at which any Eligible Refinery Hydrocarbon Inventory, Eligible Merchandise Inventory, Eligible Lubricants Inventory, Eligible In-Transit Crude Oil or Eligible In-Transit Products is located shall not exceed the value of such Inventory stored at such location.
“Replacement Lender” has the meaning specified therefor in
Section 2.13(b) of this Agreement.
“Report” has the meaning
specified therefor in Section 14.16 of this Agreement.
“Required
Lenders” means, at any time, Lenders having or holding more than fifty percent (50%) of the aggregate Revolving Loan Exposure of all Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender
shall be disregarded in the determination of the Required Lenders, and (ii) at any time there are two (2) or more Lenders, “Required Lenders” must include at least two (2) Lenders (who are not Affiliates of one another).
“Reserves” means, as of any date of determination, Availability Reserves.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK
Resolution Authority.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Payment” has the meaning specified in Section 6.7.
“Restricted Subsidiary” means each direct and indirect Subsidiary of the Par Borrower that is not an Unrestricted
Subsidiary.
“Retail Property” means Real Property owned in fee or leased by the Par Borrower or any Restricted
Subsidiary that is used in, or held for use in, the Par Borrower’s or such Restricted Subsidiary’s retail operations including, without limitation, all owned or leased real estate associated with (i) retail fueling stations branded
as “Hele,” “nomnom” and “76,” (ii) convenience stores, including those branded as “nomnom” and “Hele” and (iii) cardlock stations.
“Revolver Commitment” means, with respect to each Revolving Lender, its Revolver Commitment, and, with respect to
all Revolving Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Revolving Lender’s name under the applicable heading on Schedule C-1 to this
Agreement or in the Assignment and Acceptance or Increase Joinder pursuant to which such Revolving Lender became a Revolving Lender (or increased its Revolver Commitment) under this Agreement, as such amounts may be reduced or increased from time to
time pursuant to assignments made in accordance with the provisions of Section 12.1 of this Agreement, and as such amounts may be decreased by the amount of reductions in the Revolver Commitments made
in accordance with Section 2.4(c) hereof. As of the Closing Date, the aggregate Revolver Commitments total is $1,800,000,000.
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“Revolver Usage” means, as of any date of determination, the sum
of (a) the amount of outstanding Revolving Loans (inclusive of Swing Loans and Protective Advances), plus (b) the amount of the Letter of Credit Usage.
“Revolving Lender” means a Lender that has a Revolving Loan Exposure or Letter of Credit Exposure.
“Revolving Loan Exposure” means, with respect to any Revolving Lender, as of any date of determination
(a) prior to the termination of the Revolver Commitments, the amount of such Lender’s Revolver Commitment, and (b) after the termination of the Revolver Commitments, the aggregate outstanding principal amount of the Revolving Loans
of such Lender.
“Revolving Loans” has the meaning specified therefor in
Section 2.1(a) of this Agreement.
“RFS” means the Renewable Fuel
Standard of the United States Environmental Protection Agency in accordance with according to the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007.
“Sanctioned Entity” means (a) a country or territory or a government of a country or territory, (b) an
agency of the government of a country or territory, (c) an organization directly or indirectly controlled by a country or territory or its government, or (d) a Person resident in or determined to be resident in a country or territory, in
each case of clauses (a) through (d) that is a target of Sanctions, including a target of any country or territory sanctions program administered and enforced by OFAC.
“Sanctioned Person” means, at any time (a) any Person named on the list of Specially Designated Nationals and
Blocked Persons maintained by OFAC, OFAC’s consolidated Non-SDN list or any other Sanctions-related list maintained by any other Governmental Authority, (b) a Person or legal entity that is a target
of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons
described in clauses (a) through (c) above.
“Sanctions” means individually and
collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those
imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order,
(b) the United Nations Security Council, (c) the European Union or any European Union member state, (d) His Majesty’s Treasury of the United Kingdom or (e) any other Governmental Authority with jurisdiction over any Loan
Party or any of their respective Subsidiaries or Affiliates.
“S&P” has the meaning specified therefor in
the definition of Cash Equivalents.
“SEC” means the United States Securities and Exchange Commission and any
successor thereto.
“Secured Parties” means the Agent, the Lenders (including Issuing Bank and the Swing
Lender), the Bank Product Providers, the Joint Lead Arrangers and the other agents party to this Agreement.
“Securities
Account” means a securities account (as that term is defined in the UCC).
“Securities Act” means
the Securities Act of 1933, as amended from time to time, and any successor statute.
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“Security Document” means the Guaranty and Security Agreement, any
Control Agreement and any other security agreement or other instrument or document entered into, now or in the future, by any Loan Party for the purposes of granting, perfecting or preserving any Lien to secure the Obligations in connection with any
of the foregoing or Section 5.11 or 5.12.
“Settlement” has the meaning specified therefor in Section 2.3(e)(i)
of this Agreement.
“Settlement Date” has the meaning specified therefor in
Section 2.3(e)(i) of this Agreement.
“Shared Incremental Cap”
means an aggregate amount not to exceed (i) $750,000,000 at any time outstanding, (ii) any amount of secured Indebtedness incurred to refinance Indebtedness in respect of term loans or notes outstanding at the time of this Agreement and
(iii) any amount of Indebtedness that, at the time of its incurrence, does not cause the Net Leverage Ratio to exceed 2.00 to 1.00.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured
overnight financing rate).
“SOFR Deadline” has the meaning specified therefor in Section 2.12(b)(i) of
this Agreement.
“SOFR Loan” means each portion of a Revolving Loan that bears interest at a rate determined by
reference to Term SOFR (other than pursuant to clause (c) of the definition of “Base Rate”).
“SOFR Margin” has the meaning set forth in the definition of Applicable Margin.
“SOFR Notice” means a written notice in the form of Exhibit H to this Agreement.
“SOFR Option” has the meaning specified therefor in Section 2.12(a)
of this Agreement.
“Solvent” means, with respect to any Person as of any date of determination, that
(a) at fair valuations, the sum of such Person’s debts (including contingent liabilities) is less than all of such Person’s assets,
(b) such Person is not engaged or about to engage in a business or transaction for which the remaining assets of such Person are
unreasonably small in relation to the business or transaction or for which the property remaining with such Person is an unreasonably small capital,
(c) such Person has not incurred and does not intend to incur, or reasonably believe that it will incur, debts beyond its ability to pay such
debts as they become due (whether at maturity or otherwise), and
(d) such Person is “solvent” or not “insolvent”,
as applicable within the meaning given those terms and similar terms under Debtor Relief Laws or other Applicable Laws relating to fraudulent transfers and conveyances.
For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial
Accounting Standard No. 5).
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“Specified Assets” means the Par West refinery and all assets used
or located at the Par West refinery, provided, that no such assets shall be included in the Borrowing Base.
“Specified Event of Default” means any Event of Default described in any of
Section 7.1, Section 7.2(a) (as a result of (i) the failure to comply with Section 5.3(a)(i) (solely
with respect to each Borrower’s valid existence), Section 5.14(a)(i), Section 5.14(b)(iv) or
Section 5.14(c) or (ii) a breach of any of the Financial Covenants in Section 6.14, Section 7.2(b) (as
a result of the failure to comply with Section 5.1), Section 7.4, Section 7.5, or
Section 7.7 (with respect to material representations set forth in the Borrowing Base Report)).
“Specified Foreign Entity” means a “specified foreign entity” within the meaning of
Section 7701(a)(51)(B) of the IRC.
“Specified Representations” means the representations and warranties
contained in Sections 4.1(a), 4.2, 4.3, 4.4, 4.9, 4.13, 4.15 and 4.17 hereof.
“Standard Letter of Credit Practice” means, for Issuing Bank, any domestic or foreign law or letter of credit
practices applicable in the city in which Issuing Bank issued the applicable Letter of Credit or, for its branch or correspondent, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Letter of Credit,
as the case may be, in each case, (a) which letter of credit practices are of banks that regularly issue letters of credit in the particular city, and (b) which laws or letter of credit practices are required or permitted under ISP or UCP,
as chosen in the applicable Letter of Credit.
“Structured Hydrocarbon Supply Arrangement” means, a transaction
or series of transactions entered into by a Borrower pursuant to which one or more third parties supplies, or agrees to supply, to such Borrower Hydrocarbons of a type that, at the time of such supply, are used or produced in the Ordinary Course of
Business of the Borrowers and their Restricted Subsidiaries, including, without limitation, such transactions that include sales by such Borrower of similar Hydrocarbons to such third parties and later purchases (or options to purchase) by such
Borrower of similar Hydrocarbons from such third parties and/or their affiliates and such transactions that include the provision by such Borrower to such third parties of related storage and other related services or the leasing by such Borrower of
related storage facilities.
“Subsidiary” of a Person means a corporation, partnership, limited liability
company, unlimited liability company or other entity in which that Person directly or indirectly owns or controls the Equity Interests having ordinary voting power to elect a majority of the Board of Directors or other governing authority of such
corporation, partnership, limited liability company, or other entity. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Par Borrower.
“Supermajority Lenders” means, at any time, Revolving Lenders having or
holding more than 66 2/3% of the aggregate Revolving Loan Exposure of all Revolving Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Supermajority
Lenders and (ii) at any time there are two (2) or more Lenders, “Supermajority Lenders” must include at least two (2) Lenders (who are not Affiliates of one another).
“Suppressed Availability” means as of any date of determination, the lesser of (a) the amount, if any, by which
the Borrowing Base on such date exceeds the aggregate Commitments of all Lenders then outstanding and (b) an amount equal to 5% of the lesser of the Borrowing Base and the Maximum Revolver Amount.
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“Swap Obligation” means, with respect to any Loan Party, any
obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account the effect
of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed out and termination values determined in accordance therewith, such termination values,
and (b) for any date prior to the date referenced in clause (a), the amounts determined as the mark-to-market values for such Hedge Agreements, as determined based
upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender).
“Swing Lender” means Wells Fargo or any other Lender that, at the request of Borrowers and with the consent of Agent
agrees, in such Lender’s sole discretion, to become the Swing Lender under Section 2.3(b) of this Agreement.
“Swing Loan” has the meaning specified therefor in Section 2.3(b) of
this Agreement.
“Swing Loan Exposure” means, as of any date of determination with respect to any Lender, such
Lender’s Pro Rata Share of the Swing Loans on such date.
“Synthetic Lease” means
(a) any so-called synthetic, off-balance sheet or tax retention
lease, or
(b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such
Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Tax Lender” has the meaning specified therefor in Section 13.3 of
this Agreement.
“Tax Reserve” means the aggregate amount of reserves established by the Agent from time to time
in its Permitted Discretion in respect of federal and state excise taxes and sales taxes that will be payable by the Borrowers in connection with sales of Inventory included in the calculation of the Borrowing Base.
“Taxes” means any taxes, levies, imposts, duties, deductions, withholdings (including backup withholding),
assessments or other charges in the nature of a tax now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein, and all interest, penalties or additions to tax with respect thereto.
“Term SOFR” means,
(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on
the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR
Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term
SOFR Administrator and a Benchmark
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Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on
the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than
three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for any calculation
with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business
Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the
applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by
the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities
Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day;
provided that if Term SOFR as so determined shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of
the Term SOFR Reference Rate selected by the Agent in its reasonable discretion).
“Term SOFR Reference Rate”
means the forward-looking term rate based on SOFR.
“Total Assets” means (a) in the case of the Par
Borrower, the total consolidated assets of the Par Borrower and its Restricted Subsidiaries, as shown on the most recent balance sheet of the Par Borrower provided to the Agent pursuant to Section 3.1
or Section 5.1 and (b) in the case of any Person or Persons, the total combined or consolidated assets of such Person or Persons, as of the end of the most recent fiscal quarter, in each case
calculated in accordance with GAAP and determined on a pro forma basis to give effect to any acquisition or disposition of assets with a fair market value in excess of $500,000 made after such balance sheet date and on or prior to the date of
determination.
“UCC” shall mean the Uniform Commercial Code as in effect in the State of New York, and any
successor statute, as in effect from time to time.
“UCP” means, with respect to any Letter of Credit, the
Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 and any version or revision thereof accepted by Issuing Bank for use.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended
from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which
includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
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“UK Resolution Authority” means the Bank of England or any other
public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted
Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unfinanced Capital Expenditures” means for any period, Capital Expenditures made by such Person during such period
(including those funded by the proceeds of Collateral) and not financed or funded from the proceeds of Indebtedness (other than the Loans), issuances of Equity Interests, Dispositions or casualty events or condemnation awards in respect of Equipment
or Real Property.
“United States” means the United States of America.
“Unrestricted Cash” shall mean, as of any date of determination, the aggregate amount of all cash and Cash
Equivalents on the consolidated balance sheet of the Par Borrower and its Restricted Subsidiaries, that are not subject to a Lien (other than any Lien securing any Intermediation Facility or that is in favor of the Agent, or any Other Debt
Representative or a Lien permitted under clause (r) of the definition of “Permitted Lien”).
“Unrestricted Subsidiary” means any Subsidiary of the Par Borrower that is designated by an Authorized Person of the
Par Borrower as an Unrestricted Subsidiary, and any Subsidiary of such Subsidiary; provided that a Borrower (or direct or indirect parent thereof) may not be designated as an Unrestricted Subsidiary if such Borrower is the primary
borrower, obligor or applicant with respect to any Revolver Usage outstandings at such time. Notwithstanding the provisions set forth above with respect to “Unrestricted Subsidiaries”, the Par Borrower shall not designate
any Subsidiary as an Unrestricted Subsidiary, to the extent that such Subsidiary directly or indirectly owns a Refinery (other than Excluded Refineries). As of the Closing Date, there are no Unrestricted Subsidiaries.
“Unused Line Fee” has the meaning specified therefor in
Section 2.10(b) of this Agreement.
“Upstream Payment” means
Distribution by a Restricted Subsidiary made ratably with respect to its Equity Interests and Distributions by a Borrower to another Borrower or made with respect to Indebtedness held by a holder of Equity Interests (other than holders of Equity
Interests in the Par Borrower); it being understood and agreed that nothing in this definition shall permit or deemed to permit any Distribution by an Obligor with respect to Indebtedness held by a holder of Equity Interest that is not an Obligor.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or
(c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities;
provided, that for purposes of notice requirements in Sections 2.3(a), 2.3(c) and 2.12(b), in each case, such day is also a Business Day.
“U.S. Person” means any Person that is (a) a United States person within the meaning of IRC
Section 7701(a)(30) or (b) disregarded as an entity separate from a United States person within the meaning of IRC Section 7701(a)(30) for U.S. federal income tax purposes.
“U.S. Special Resolution Regimes” has the meaning specified therefor in
Section 16.18 of this Agreement.
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“U.S. Tax Compliance Certificate” has the meaning specified
therefor in Section 2.18(g) of this Agreement.
“USOR” shall have
the meaning set forth in the preamble to this Agreement.
“USOR Refinery” means the refinery of USOR located in
Tacoma, Washington.
“Valuation Method” means, the benchmark market pricing, methods and criteria used in
connection with the most recent field examination and inventory appraisal performed prior to the Closing Date (including, for the avoidance of doubt, OPIS and Platts as of the most recent field examination and inventory appraisal) and such
benchmarks, methods and criteria, and revisions thereof, as may be mutually agreed by the Agent and the Administrative Borrower from time to time to address the results of any field examination or inventory appraisal performed after the Closing Date
and other due diligence or other information with respect to the Obligors’ business or assets of which the Agent becomes aware after the Closing Date.
“Voidable Transfer” has the meaning specified therefor in
Section 16.8 of this Agreement.
“Washington Climate Commitment
Act” means Chapter 70A.65 of the Revised Code of Washington, as amended from time to time.
“Weighted Average
Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking
fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years calculated to the nearest one-twelfth that will elapse
between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
“Wells Fargo” means Wells Fargo Bank, National Association, a national banking association.
“Withholding Agent” means any Loan Party and the Agent.
“Write-Down and Conversion Powers” means
(a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time
under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and
(b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the
Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that
liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that
liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
“Wyoming Pipeline” shall have the meaning set forth in the preamble to this Agreement.
“Wyoming Refinery” means the refinery of Hermes located in Newcastle, Wyoming.
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1.2 Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP; provided, that if the Par Borrower notifies Agent that the Par Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after
the Closing Date or in the application thereof on the operation of such provision (or if Agent notifies the Par Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice
is given before or after such Accounting Change or in the application thereof, then Agent and the Par Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting
Change with the intent of having the respective positions of the Lenders and the Par Borrower after such Accounting Change conform as nearly as possible to their respective positions immediately before such Accounting Change took effect and, until
any such amendments have been agreed upon and agreed to by the Required Lenders, the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred. When used herein, the term “financial statements” shall
include the notes and schedules thereto. Whenever the term “Borrower” or “Par Borrower” is used in respect of a financial covenant or a related definition, it shall be understood to mean the Par Borrower and its
Restricted Subsidiaries on a consolidated basis, unless the context clearly requires otherwise. Notwithstanding anything to the contrary contained herein, (a) all financial statements delivered hereunder shall be prepared, and all financial
covenants contained herein shall be calculated, without giving effect to any election under the Statement of Financial Accounting Standards Board’s Accounting Standards Codification Topic 825 (or any similar accounting principle) permitting a
Person to value its financial liabilities or Indebtedness at the fair value thereof, and (b) the term “unqualified opinion” as used herein to refer to opinions or reports provided by accountants shall mean an opinion or report that
is (i) unqualified, and (ii) does not include any explanation, supplemental comment, or other comment concerning the ability of the applicable Person to continue as a going concern or concerning the scope of the audit (other than solely as
a result of (A) any upcoming maturity date under any Indebtedness, (B) any actual or potential inability to satisfy any financial maintenance covenant under any Indebtedness on a future date or in a future period or (C) the
activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary). Notwithstanding any changes in GAAP or application of GAAP after March 30, 2018, any lease of the Par Borrower or their Subsidiaries that would be
characterized as an operating lease under GAAP in effect on March 30, 2018, or as applied on March 30, 2018 (whether such lease is entered into before or after March 30, 2018) shall not constitute a Capital Lease under this Agreement
or any other Loan Document as a result of such changes in GAAP or application thereof unless otherwise agreed to in writing by the Par Borrower and Required Lenders.
1.3 UCC.
(a) Any terms used in this Agreement that are defined in the UCC shall be construed and defined as set forth in the UCC unless otherwise
defined herein; provided, that to the extent that the UCC is used to define any term herein and such term is defined differently in different Articles of the UCC, the definition of such term contained in Article 9 of the UCC shall govern.
(b) As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York from time to time:
“Chattel Paper,” “Commercial Tort Claim,” “Commodity Account,” “Deposit Account,” “Document,”
“Equipment,” “General Intangibles,” “Goods,” “Instrument,” “Investment Property,” “Letter-of-Credit Right,” “Payment Intangible,” “Securities Account” and “Supporting
Obligation.”
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1.4 Construction.
(a) Unless the context of this Agreement or any other Loan Document clearly requires otherwise, references to the plural include the singular,
references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the
case may be, as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be. Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified. Any
reference in this Agreement or in any other Loan Document to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements,
thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). The words “asset”
and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts, and contract rights. Any reference to
“province” or like terms in the Loan Documents shall be construed to include “territory” and like terms.
(b) Any
reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean
(i) (A) the payment or repayment in full in immediately available funds of (i) the principal amount of, and interest
accrued and unpaid with respect to, all outstanding Loans, together with the payment of any premium applicable to the repayment of the Loans, (ii) all Lender Group Expenses that have accrued and are unpaid regardless of whether demand has been
made therefor, and (iii) all fees or charges that have accrued hereunder or under any other Loan Document (including the Letter of Credit Fee and the Unused Line Fee) and are unpaid, and
(B) in the case of contingent reimbursement obligations with respect to Letters of Credit, providing Letter of Credit
Collateralization or other arrangements satisfactory to the applicable Issuing Bank,
(ii) the receipt by Agent of Cash
Collateral in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior to such time or in respect of matters or circumstances known to Agent or a Lender at such time that are reasonably
expected to result in any loss, cost, damage, or expense (including attorneys’ fees and legal expenses), such Cash Collateral to be in such amount as Agent reasonably determines is appropriate to secure such contingent Obligations,
(iii) the payment or repayment in full in immediately available funds of all other outstanding Obligations other than
(i) unasserted contingent indemnification Obligations, (ii) any Bank Product Obligations (other than Hedge Obligations) that, at such time, are allowed by the applicable Bank Product Provider to remain outstanding without being required to
be repaid or Cash Collateralized, and (iii) any Hedge Obligations that, at such time, are allowed by the applicable Hedge Provider to remain outstanding without being required to be repaid, and
(iv) the termination of all of the Commitments of the Lenders and of the obligation of the Issuing Banks to issue Letters of
Credit.
(c) Any reference herein to any Person shall be construed to include such Person’s successors and assigns.
(d) Any requirement of a writing contained herein or in any other Loan Document shall be satisfied by the transmission of a Record.
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(e) This Agreement and other Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms.
(f) This Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to Agent and the other
parties, and are the products of all parties. Accordingly, this Agreement and the other Loan Documents shall not be construed against Agent or Lenders merely because of Agent’s or any Lender’s involvement in their preparation.
(g) For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event
under a different jurisdiction’s laws): (i) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original
Person to the subsequent Person, and (ii) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
(h) All calculations of value, Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be denominated
in Dollars, unless expressly provided otherwise, and all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such
time. Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to the Agent.
1.5 Time References. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, all
references to time of day refer to Eastern standard time or Eastern daylight saving time, as in effect in New York, New York on such day. For purposes of the computation of a period of time from a specified date to a later specified date, unless
otherwise expressly provided, the word “from” means “from and including” and the words “to” and “until” each means “to and including”; provided, that with respect to a
computation of fees or interest payable to Agent or any Lender, such period shall in any event consist of at least one full day.
1.6 Schedules and Exhibits. All of the schedules and exhibits attached to this Agreement shall be deemed incorporated
herein by reference.
1.7 Rates. Agent does not warrant or accept any responsibility for, and shall not have any
liability with respect to,
(a) the continuation of, administration of, submission of, calculation of or any other matter related to the
Term SOFR Reference Rate, Term SOFR or any other Benchmark, any component definition thereof or rates referred to in the definition thereof, or with respect to any alternative, successor or replacement rate thereto (including any then-current
Benchmark or any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant to
Section 2.12(d)(iii), will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark,
prior to its discontinuance or unavailability, or
(b) the effect, implementation or composition of any Conforming Changes. Agent and its
Affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments
thereto and such transactions may be adverse to a Borrower.
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Agent may select information sources or services in its reasonable discretion to ascertain
the Term SOFR Reference Rate or Term SOFR, or any other Benchmark, any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to any Borrower,
any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in
equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
1.8 Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan
Document, to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with an Increase, Loans in connection with any Extended Revolver Commitments or loans incurred under a new credit
facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any
requirement hereunder or any other Loan Document that such payment be made “in Dollars”, “in immediately available funds”, “in Cash” or any other similar requirement.
1.9 Limited Condition Transaction.
(a) Notwithstanding anything to the contrary in this Agreement, solely for the purpose of (A) measuring the relevant financial ratios and
basket availability with respect to the incurrence of any Indebtedness or Liens, the making of any Investments or the repayment of Indebtedness, Disqualified Equity Interests or preferred stock, or the making of any other Limited Condition
Transaction (but excluding any Adjusted Excess Availability and/or Borrowing Base based ratio and/or basket), or (B) determining compliance with representations and warranties or the occurrence of any Default or Event of Default (but excluding
Adjusted Excess Availability determinations in respect of Payment Conditions or the Borrowing Base), in each case, in connection with a Limited Condition Transaction, the Par Borrower may elect (the “LCT Election”) to deem
the date of determination of whether any such action is permitted hereunder for such Limited Condition Transaction to be the date on which the definitive agreements for such Limited Condition Transaction are entered into (or if applicable, the date
of delivery of an irrevocable declaration of a Restricted Payment or similar event) (the “LCT Test Date”) or the date of the consummation of the Limited Condition Transaction and related incurrence of Indebtedness or Liens
or the related making of Investments or other related transactions, in each case, after giving pro forma effect to the relevant Limited Condition Transaction and related incurrence of Indebtedness or Liens, the related making of Investments or the
repayment of Indebtedness, Disqualified Equity Interests or preferred stock or other transaction.
(b) If the Par Borrower has made an LCT
Election, then, in connection with any unrelated calculation of any ratio or test at or following the relevant LCT Test Date, and prior to the earlier of (x) the date on which such Limited Condition Transaction is consummated or (y) the
date that the definitive agreement or the date for redemption, repurchase or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, passes or expires without consummation of such Limited Condition
Transaction, any such ratio or test shall be calculated on (A) a pro forma basis assuming such Limited Condition Transaction and any transactions in connection therewith (including any incurrence of Indebtedness, Liens and the use of proceeds
thereof) has been consummated, and also on (B) a standalone basis without giving effect to such Limited Condition Transaction or any such transactions in connection therewith.
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(c) If the Par Borrower has made an LCT Election and any of the ratios or baskets for which
compliance was determined or tested as of the LCT Test Date in connection with a Limited Condition Transaction are exceeded as a result of fluctuations in any such ratio or basket (including due to fluctuations of the target of any Limited Condition
Transaction) at or prior to the consummation of the relevant transaction or action, such ratios or baskets will not be deemed to have been exceeded as a result of such fluctuations (but, for the avoidance of doubt, any subsequent improvement in the
applicable ratio or test may be utilized) solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder.
1.10 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division
under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed
to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity
Interests at such time.
1.11 Information Limitation. For all purposes under the Loan Documents, nothing in
this Agreement or any other Loan Document shall cause or require Holdings, any Borrower or any Restricted Subsidiary to divulge or otherwise provide any information or access to the extent it could result in (1) violating any confidentiality
agreement, (2) the termination of any attorney-client privilege or (3) the delivery of any trade secrets, provided, further, that in each case, the applicable Loan Party shall advise Agent that information is being
withheld and shall use its commercially reasonable efforts to disclose, to the extent feasible and without the requirement for a waiver or amendment thereto, the applicable information in a way that would not violate the applicable obligation.
2. LOANS AND TERMS OF PAYMENT.
2.1 Revolving Loans.
(a) Subject to the terms and conditions of this Agreement, and during the term of this Agreement, each Revolving Lender agrees (severally, not
jointly or jointly and severally) to make revolving loans (“Revolving Loans”) to Borrowers in an amount at any one time outstanding not to exceed the lesser of:
(i) such Lender’s Revolver Commitment, or
(ii) such Lender’s Pro Rata Share of an amount equal to the lesser of:
(A) the amount equal to (1) the Maximum Revolver Amount, less (2) the sum of (y) the Letter of Credit Usage at
such time, plus (z) the principal amount of Swing Loans outstanding at such time, and
(B) the amount equal to
(1) the Borrowing Base as of such date (based upon the most recent Borrowing Base Report delivered by Borrowers to Agent, as adjusted for Reserves established by Agent in accordance with
Section 2.1(c)), less (2) the sum of (x) the Letter of Credit Usage at such time, plus (y) the principal amount of Swing Loans outstanding at such time.
(b) Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to the terms and
conditions of this Agreement, reborrowed at any time during the term of this Agreement. The outstanding principal amount of the Revolving Loans, together with interest accrued and unpaid thereon, shall constitute Obligations and shall be due and
payable on the applicable Maturity Date or, if earlier, on the date on which they otherwise become due and payable pursuant to the terms of this Agreement.
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(c) Anything to the contrary in this
Section 2.1 notwithstanding, Agent shall have the right (but not the obligation) at any time, in the exercise of its Permitted Discretion, to establish and increase or decrease Reserves and against the
Borrowing Base. The amount of any Reserve established by Agent, and any changes to the eligibility criteria set forth in the definitions of Eligible Accounts Receivable, Eligible Investment Grade Receivables, Eligible Tax Receivables, Eligible
Credit Card Receivables, Eligible L/C-Backed Receivables, Eligible Refinery Hydrocarbon Inventory, Eligible Lubricants Inventory, Eligible In-Transit Crude Oil, Eligible
In-Transit Products, Eligible Exchange Agreement Positive Balance, Eligible Merchandise Inventory, Eligible Unbilled Accounts, Eligible Cash, Eligible Environmental Assets or Eligible Petroleum Asphalt
Inventory shall have a reasonable relationship to the event, condition, other circumstance, or fact that is the basis for such reserve or change in eligibility and shall not be duplicative of any other reserve established and currently maintained or
eligibility criteria; provided, that Agent shall endeavor to notify Administrative Borrower at or before the time any such Reserve in a material amount is to be established or increased. Upon establishment or increase in Reserves, Agent
agrees to make itself available to discuss the Reserve or increase, and Borrowers may take such action as may be required so that the event, condition, circumstance, or fact that is the basis for such reserve or increase no longer exists, in a
manner and to the extent reasonably satisfactory to Agent in the exercise of its Permitted Discretion.
2.2
[Reserved].
2.3 Borrowing Procedures and Settlements.
(a) Procedure for Borrowing Revolving Loans. Each Borrowing shall be made by a written request by an Authorized Person delivered to
Agent (which may be delivered through Agent’s electronic platform or portal) and received by Agent no later than:
(i) 3:30 p.m. on the Business Day that is the requested Funding Date in the case of a request for a Swing Loan,
(ii) 11:00 a.m. on the Business Day that is the requested Funding Date in the case of a request for a Base Rate Loan that is
not a Swing Loan, and
(iii) 12:00 noon on the U.S. Government Securities Business Day that is three U.S. Government
Securities Business Days prior to the requested Funding Date in the case of a request for a SOFR Loan, specifying (A) the amount of such Borrowing, and (B) the requested Funding Date (which shall be a Business Day); provided,
that Agent may, in its sole discretion, elect to accept as timely requests that are received later than 12:00 noon on the applicable Business Day or U.S. Government Securities Business Day, as applicable.
All Borrowing requests which are not made on-line via Agent’s electronic platform or portal shall be subject to
(and unless Agent elects otherwise in the exercise of its sole discretion, such Borrowings shall not be made until the completion of) Agent’s authentication process (with results satisfactory to Agent) prior to the funding of any such
requested Revolving Loan.
(b) Making of Swing Loans. In the case of a Swing Loan and so long as any of
(i) the aggregate amount of Swing Loans made since the last Settlement Date, minus all payments or other amounts applied to
Swing Loans since the last Settlement Date, plus the amount of the requested Swing Loan does not exceed $180,000,000, or
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(ii) Swing Lender, in its sole discretion, agrees to make a Swing Loan
notwithstanding the foregoing limitation (provided, that, with respect to any such Swing Loans made by Swing Lender in its discretion, the amounts thereof in excess of the, amount contemplated by clause (i) above shall be subject
to Settlement in accordance with Section 2.3(e) on the Business Day following the Funding Date for such amounts),
Swing Lender shall make a Revolving Loan (any such Revolving Loan made by Swing Lender pursuant to this
Section 2.3(b) being referred to as a “Swing Loan” and all such Revolving Loans being referred to as “Swing Loans”) available to Borrowers on the
Funding Date applicable thereto by transferring immediately available funds in the amount of such Borrowing to the Designated Account. Each Swing Loan shall be deemed to be a Revolving Loan hereunder and shall be subject to all the terms and
conditions (including Section 3) applicable to other Revolving Loans, except that all payments (including interest) on any Swing Loan shall be payable to Swing Lender solely for its own account. Subject
to the provisions of Section 2.3(d)(ii), Swing Lender shall not make and shall not be obligated to make any Swing Loan if Swing Lender has actual knowledge that (i) one or more of the applicable
conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing, or (ii) the requested Borrowing would exceed the Excess Availability on such Funding Date. Swing Lender shall not
otherwise be required to determine whether the applicable conditions precedent set forth in Section 3 have been satisfied on the Funding Date applicable thereto prior to making any Swing Loan. The Swing
Loans shall be secured by Agent’s Liens, constitute Revolving Loans and Obligations, and bear interest at the rate applicable from time to time to Revolving Loans that are Base Rate Loans.
(c) Making of Revolving Loans.
(i) After receipt of a request for a Borrowing of Revolving Loans other than Swing Loans pursuant to
Section 2.3(a), Agent shall notify the Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested Borrowing; such notification to be sent on the Business Day or
U.S. Government Securities Business Day, as applicable, that is (A) in the case of a Base Rate Loan, prior to 12:00 noon on the requested Funding Date, or (B) in the case of a SOFR Loan, prior to 12:00 noon at least three U.S. Government
Securities Business Days prior to the requested Funding Date. If Agent has notified the Lenders of a requested Borrowing by the date specified in the immediately preceding sentence, then each Lender shall make the amount of such Lender’s Pro
Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than (x) in the case of a Base Rate Loan, 1:00 p.m. on the Business Day that is the requested Funding Date and
(y) in the case of a SOFR Loan, 12:00 noon on the Business Day that is the requested Funding Date. After Agent’s receipt of the proceeds of such Revolving Loans from the Lenders, Agent shall make the proceeds thereof available to
Borrowers on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Designated Account; provided, that subject to the provisions of
Section 2.3(d)(ii), no Lender shall have an obligation to make any Revolving Loan, if
(A) one or more of the applicable conditions precedent set forth in Section 3
will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or
(B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
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(ii) Unless Agent receives notice from a Lender prior to 9:30 a.m. on the
Business Day that is the requested Funding Date relative to a requested Borrowing as to which Agent has notified the Lenders of a requested Borrowing that such Lender will not make available as and when required hereunder to Agent for the account of
Borrowers the amount of that Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so
required), in reliance upon such assumption, make available to Borrowers a corresponding amount. If, on the requested Funding Date, any Lender shall not have remitted the full amount that it is required to make available to Agent in immediately
available funds and if Agent has made available to Borrowers such amount on the requested Funding Date, then such Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately
available funds, to Agent’s Account, no later than 10:00 a.m. on the Business Day that is the first Business Day after the requested Funding Date (in which case, the interest accrued on such Lender’s portion of such Borrowing for the
Funding Date shall be for Agent’s separate account). If any Lender shall not remit the full amount that it is required to make available to Agent in immediately available funds as and when required hereby and if Agent has made available to
Borrowers such amount, then that Lender shall be obligated to immediately remit such amount to Agent, together with interest at the Defaulting Lender Rate for each day until the date on which such amount is so remitted. A notice submitted by Agent
to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent manifest error. If the amount that a Lender is required to remit is made available to Agent, then
such payment to Agent shall constitute such Lender’s Revolving Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of
such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Revolving Loans composing such Borrowing.
(d) Protective Advances and Optional Overadvances.
(i) Any contrary provision of this Agreement or any other Loan Document notwithstanding (but subject to
Section 2.3(d)(iv)), at any time (A) after the occurrence and during the continuance of a Default or an Event of Default, or (B) that any of the other applicable conditions precedent set forth
in Section 3 are not satisfied, Agent hereby is authorized by Borrowers and the Lenders, from time to time, in Agent’s sole discretion, to make Revolving Loans to, or for the benefit of,
Borrowers, on behalf of the Revolving Lenders, that Agent, in its Permitted Discretion, deems necessary or desirable (1) to preserve or protect the Collateral, or any portion thereof, or (2) to enhance the likelihood of repayment of the
Obligations (other than the Bank Product Obligations) (the Revolving Loans described in this Section 2.3(d)(i) shall be referred to as “Protective Advances”). Notwithstanding
the foregoing, the aggregate amount of all Protective Advances shall not cause the Revolver Usage to exceed the Maximum Revolver Amount.
(ii) Any contrary provision of this Agreement or any other Loan Document notwithstanding, the Lenders hereby authorize Agent or
Swing Lender, as applicable, and either Agent or Swing Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to make Revolving Loans (including Swing Loans) to Borrowers notwithstanding that an Overadvance exists
or would be created thereby, so long as
(A) after giving effect to such Revolving Loans, the outstanding Revolver Usage
does not exceed the Maximum Revolver Amount, and
(B) subject to
Section 2.3(d)(iv) below, after giving effect to such Revolving Loans, the outstanding Revolver Usage (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group
Expenses) does not exceed the Maximum Revolver Amount.
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In the event Agent obtains actual knowledge that the Revolver Usage exceeds the amounts
permitted by this Section 2.3(d), regardless of the amount of, or reason for, such excess, Agent shall notify the Lenders as soon as practicable (and prior to making any (or any additional) intentional
Overadvances (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) unless Agent determines that prior notice would result in imminent harm to the Collateral or its value, in which case Agent may
make such Overadvances and provide notice as promptly as practicable thereafter), and the Lenders with Revolver Commitments thereupon shall, together with Agent, jointly determine the terms of arrangements that shall be implemented with Borrowers
intended to reduce, within a reasonable time, the outstanding principal amount of the Revolving Loans to Borrowers to an amount permitted by the preceding sentence. In such circumstances, if any Lender with a Revolver Commitment objects to the
proposed terms of reduction or repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented according to the determination of the Required Lenders. The foregoing provisions are meant for the benefit of the Lenders
and Agent and are not meant for the benefit of Borrowers, which shall continue to be bound by the provisions of Section 2.4(e)(i). Each Lender with a Revolver Commitment shall be obligated to settle
with Agent as provided in Section 2.3(e) (or Section 2.3(g), as applicable) for the amount of such Lender’s Pro Rata Share of any unintentional
Overadvances by Agent reported to such Lender, any intentional Overadvances made as permitted under this Section 2.3(d)(ii), and any Overadvances resulting from the charging to the Loan Account of
interest, fees, or Lender Group Expenses.
(iii) Each Protective Advance and each Overadvance (each, an
“Extraordinary Advance”) shall be deemed to be a Revolving Loan hereunder, except that no Extraordinary Advance shall be eligible to be a SOFR Loan. Prior to Settlement of any Extraordinary Advance, all payments with
respect thereto, including interest thereon, shall be payable to Agent solely for its own account. Each Revolving Lender shall be obligated to settle with Agent as provided in Section 2.3(e) (or
Section 2.3(g), as applicable) for the amount of such Lender’s Pro Rata Share of any Extraordinary Advance. The Extraordinary Advances shall be repayable on demand, secured by Agent’s Liens,
constitute Obligations hereunder, and bear interest at the rate applicable from time to time to Revolving Loans that are Base Rate Loans. The provisions of this Section 2.3(d) are for the exclusive
benefit of Agent, Swing Lender, and the Lenders and are not intended to benefit Borrowers (or any other Loan Party) in any way. Notwithstanding the foregoing, the aggregate amount of all Extraordinary Advances outstanding at any one time shall not
exceed 10% of the Borrowing Base.
(iv) Notwithstanding anything contained in this Agreement or any other Loan Document to
the contrary, no Extraordinary Advance may be made by Agent if such Extraordinary Advance would cause the aggregate Revolver Usage to exceed the Maximum Revolver Amount or any Lender’s Pro Rata Share of the Revolver Usage to exceed such
Lender’s Revolver Commitments. No Lender shall have an obligation to settle with Agent for such Extraordinary Advances that cause the aggregate Revolver Usage to exceed the Maximum Revolver Amount or a Lender’s Pro Rata Share of the
Revolver Usage to exceed such Lender’s Revolver Commitments as provided in Section 2.3(e) (or Section 2.3(g), as applicable).
(e) Settlement. It is agreed that each Lender’s funded portion of the Revolving Loans is intended by the Lenders to equal, at all
times, such Lender’s Pro Rata Share of the outstanding Revolving Loans. Such agreement notwithstanding, Agent, Swing Lender, and the other Lenders agree (which agreement shall not be for the benefit of Borrowers) that in order to facilitate
the administration of this Agreement and the other Loan Documents, settlement among the Lenders as to the Revolving Loans (including Swing Loans and Extraordinary Advances) shall take place on a periodic basis in accordance with the following
provisions:
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(i) Agent shall request settlement (“Settlement”)
with the Lenders on a weekly basis, or on a more frequent basis if so determined by Agent in its sole discretion (1) on behalf of Swing Lender, with respect to the outstanding Swing Loans, (2) for itself, with respect to the outstanding
Extraordinary Advances, and (3) with respect to any Loan Party’s or any of its Restricted Subsidiaries’ payments or other amounts received, as to each by notifying the Lenders by telecopy, telephone, or other similar form of
transmission, of such requested Settlement, no later than 2:00 p.m. on the Business Day immediately prior to the date of such requested Settlement (the date of such requested Settlement being the “Settlement Date”). Such
notice of a Settlement Date shall include a summary statement of the amount of outstanding Revolving Loans (including Swing Loans and Extraordinary Advances) for the period since the prior Settlement Date. Subject to the terms and conditions
contained herein (including Section 2.3(g)):
(y) if the amount of the
Revolving Loans (including Swing Loans and Extraordinary Advances) made by a Lender that is not a Defaulting Lender exceeds such Lender’s Pro Rata Share of the Revolving Loans (including Swing Loans and Extraordinary Advances) as of a
Settlement Date, then Agent shall, by no later than 12:00 p.m. on the Settlement Date, transfer in immediately available funds to a Deposit Account of such Lender (as such Lender may designate), an amount such that each such Lender shall, upon
receipt of such amount, have as of the Settlement Date, its Pro Rata Share of the Revolving Loans (including Swing Loans and Extraordinary Advances), and
(z) if the amount of the Revolving Loans (including Swing Loans and Extraordinary Advances) made by a Lender is less than such
Lender’s Pro Rata Share of the Revolving Loans (including Swing Loans and Extraordinary Advances) as of a Settlement Date, such Lender shall no later than 12:00 p.m. on the Settlement Date transfer in immediately available funds to
Agent’s Account, an amount such that each such Lender shall, upon transfer of such amount, have as of the Settlement Date, its Pro Rata Share of the Revolving Loans (including Swing Loans and Extraordinary Advances).
Such amounts made available to Agent under clause (z) of the immediately preceding sentence shall be applied against the
amounts of the applicable Swing Loans or Extraordinary Advances and, together with the portion of such Swing Loans or Extraordinary Advances representing Swing Lender’s Pro Rata Share thereof, shall constitute Revolving Loans of such Lenders.
After giving effect to any Settlement, any applicable Swing Loans shall be deemed to be Revolving Loans rather than Swing Loans. If any such amount is not made available to Agent by any Lender on the Settlement Date applicable thereto to the extent
required by the terms hereof, Agent shall be entitled to recover for its account such amount on demand from such Lender together with interest thereon at the Defaulting Lender Rate.
(ii) In determining whether a Lender’s balance of the Revolving Loans (including Swing Loans and Extraordinary Advances)
is less than, equal to, or greater than such Lender’s Pro Rata Share of the Revolving Loans (including Swing Loans and Extraordinary Advances) as of a Settlement Date, Agent shall, as part of the relevant Settlement, apply to such balance the
portion of payments actually received in good funds by Agent with respect to principal, interest, fees payable by Borrowers and allocable to the Lenders hereunder, and proceeds of Collateral.
(iii) Between Settlement Dates, Agent, to the extent Extraordinary Advances or Swing Loans are outstanding, may pay over to
Agent or Swing Lender, as applicable, any payments or other amounts received by Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Revolving Loans, for application to the Extraordinary Advances or
Swing Loans. Between Settlement Dates, Agent, to the extent no Extraordinary Advances or Swing
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Loans are outstanding, may pay over to Swing Lender any payments or other amounts received by Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the
Revolving Loans, for application to Swing Lender’s Pro Rata Share of the Revolving Loans. If, as of any Settlement Date, payments or other amounts of the Loan Parties or their Subsidiaries received since the then immediately preceding
Settlement Date have been applied to Swing Lender’s Pro Rata Share of the Revolving Loans other than to Swing Loans, as provided for in the previous sentence, Swing Lender shall pay to Agent for the accounts of the Lenders, and Agent shall pay
to the Lenders (other than a Defaulting Lender if Agent has implemented the provisions of Section 2.3(g)), to be applied to the outstanding Revolving Loans of such Lenders, an amount such that each such
Lender shall, upon receipt of such amount, have, as of such Settlement Date, its Pro Rata Share of the Revolving Loans. During the period between Settlement Dates, Swing Lender with respect to Swing Loans, Agent with respect to Extraordinary
Advances, and each Lender with respect to the Revolving Loans other than Swing Loans and Extraordinary Advances, shall be entitled to interest at the applicable rate or rates payable under this Agreement on the daily amount of funds employed by
Swing Lender, Agent, or the Lenders, as applicable.
(iv) Anything in this
Section 2.3(e) to the contrary notwithstanding, in the event that a Lender is a Defaulting Lender, Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and,
instead, shall be entitled to elect to implement the provisions set forth in Section 2.3(g).
(f) Notation. Consistent with Section 12.1(h), Agent, as a non-fiduciary agent for Borrowers, shall maintain a register showing the principal amount and stated interest of the Revolving Loans, owing to each Lender, including the Swing Loans owing to Swing Lender, and
Extraordinary Advances owing to Agent, and the interests therein of each Lender, from time to time and such register shall, absent manifest error, conclusively be presumed to be correct and accurate.
(g) Defaulting Lenders.
(i) Notwithstanding the provisions of Section 2.4(b)(iii), Agent shall not be
obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of
such transfer to the Defaulting Lender, Agent shall transfer any such payments
(A) first, to Agent to the extent of any
Extraordinary Advances that were made by Agent and that were required to be, but were not, paid by Defaulting Lender,
(B)
second, to Swing Lender to the extent of any Swing Loans that were made by Swing Lender and that were required to be, but were not, paid by the Defaulting Lender,
(C) third, to Issuing Bank, to the extent of the portion of a Letter of Credit Disbursement that was required to be, but was
not, paid by the Defaulting Lender,
(D) fourth, to each Non-Defaulting Lender
ratably in accordance with their Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of a Revolving Loan (or other funding obligation) was funded by such other
Non-Defaulting Lender),
(E) fifth, in Agent’s sole discretion, to a suspense
account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be
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re-advanced to or for the benefit of Borrowers (upon the request of Borrowers and subject to the conditions set forth in Section 3.2) as if such
Defaulting Lender had made its portion of Revolving Loans (or other funding obligations) hereunder, and
(F) sixth, from
and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (L) of Section 2.4(b)(iii).
Subject to the foregoing, Agent may hold and, in its discretion, re-lend to Borrowers for the account
of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the
calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.10(b), such Defaulting Lender shall be deemed not to be a
“Lender” and such Lender’s Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by
Section 13.1(a)(i) through (iii). The provisions of this Section 2.3(g) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which
all of the Non-Defaulting Lenders, Agent, Issuing Bank, and Borrowers shall have waived, in writing, the application of this Section 2.3(g) to such Defaulting Lender, or (z) the date on which such
Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides
adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining Cash Collateral held by Agent pursuant to
Section 2.3(g)(ii) shall be released to Borrowers). The operation of this Section 2.3(g) shall not be construed to increase or otherwise affect the
Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to
Agent, Issuing Bank, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and
shall entitle Borrowers, at their option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender that is not an Eligible Transferee to be reasonably acceptable to
Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the
substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations, but including
(1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption
of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to
fund. In the event of a direct conflict between the priority provisions of this Section 2.3(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the
parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions
of this Section 2.3(g) shall control and govern.
(ii) If any Swing Loan or
Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then:
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(A) such Defaulting Lender’s Swing Loan Exposure and Letter of Credit
Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all
Non-Defaulting Lenders’ Pro Rata Share of Revolver Usage plus such Defaulting Lender’s Swing Loan Exposure and Letter of Credit Exposure does not exceed the total of all Non-Defaulting Lenders’ Revolver Commitments and (y) the conditions set forth in Section 3.2 are satisfied at such time;
(B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, Borrowers shall within
one Business Day following notice by Agent (x) first, prepay such Defaulting Lender’s Swing Loan Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), and (y) second, Cash Collateralize such
Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), pursuant to a Cash Collateral agreement to be entered into in form and substance reasonably satisfactory to
Agent, for so long as such Letter of Credit Exposure is outstanding; provided, that Borrowers shall not be obligated to Cash Collateralize any Defaulting Lender’s Letter of Credit Exposure if such Defaulting Lender is also
Issuing Bank;
(C) if Borrowers Cash Collateralize any portion of such Defaulting Lender’s Letter of Credit Exposure
pursuant to this Section 2.3(g)(ii), Borrowers shall not be required to pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender pursuant to
Section 2.6(b) with respect to such Cash Collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is Cash Collateralized;
(D) to the extent the Letter of Credit Exposure of the Non-Defaulting Lenders is
reallocated pursuant to this Section 2.3(g)(ii), then the Letter of Credit Fees payable to the Non-Defaulting Lenders pursuant to
Section 2.6(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Letter of Credit Exposure;
(E) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized nor reallocated
pursuant to this Section 2.3(g)(ii), then, without prejudice to any rights or remedies of Issuing Bank or any Lender hereunder, all Letter of Credit Fees that would have otherwise been payable to such
Defaulting Lender under Section 2.6(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to Issuing Bank until such portion of such Defaulting Lender’s Letter
of Credit Exposure is Cash Collateralized or reallocated;
(F) so long as any Lender is a Defaulting Lender, the Swing
Lender shall not be required to make any Swing Loan and Issuing Bank shall not be required to issue, amend, or increase any Letter of Credit, in each case, to the extent (x) the Defaulting Lender’s Pro Rata Share of such Swing Loans or
Letter of Credit cannot be reallocated pursuant to this Section 2.3(g)(ii), or (y) the Swing Lender or Issuing Bank, as applicable, has not otherwise entered into arrangements reasonably
satisfactory to the Swing Lender or Issuing Bank, as applicable, and Borrowers to eliminate the Swing Lender’s or Issuing Bank’s risk with respect to the Defaulting Lender’s participation in Swing Loans or Letters of Credit; and
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(G) Agent may release any Cash Collateral provided by Borrowers pursuant to
this Section 2.3(g)(ii) to Issuing Bank and Issuing Bank may apply any such Cash Collateral to the payment of such Defaulting Lender’s Pro Rata Share of any Letter of Credit Disbursement that is not reimbursed by Borrowers pursuant to
Section 2.11(d). Subject to Section 16.14, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a
Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting
Lender’s increased exposure following such reallocation.
(h) Independent Obligations. All Revolving Loans (other than Swing
Loans and Extraordinary Advances) shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its
obligation to make any Revolving Loan (or other extension of credit) hereunder, nor shall any Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no
failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.
2.4
Payments; Reductions of Commitments; Prepayments.
(a) Payments by Borrowers.
(i) Except as otherwise expressly provided herein, all payments by Borrowers shall be made to Agent’s Account for the
account of the Lender Group and shall be made in immediately available funds, no later than 1:30 p.m. on the date specified herein; provided that, for the avoidance of doubt, any payments deposited into a Controlled Account (as
defined in the Guaranty and Security Agreement) shall be deemed not to be received by Agent on any Business Day unless immediately available funds have been credited to Agent’s Account prior to 1:30 p.m. on such Business Day. Any payment
received by Agent in immediately available funds in Agent’s Account later than 1:30 p.m. shall be deemed to have been received (unless Agent, in its sole discretion, elects to credit it on the date received) on the following Business Day and
any applicable interest or fee shall continue to accrue until such following Business Day. All payments to be made by Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.
(ii) Unless Agent receives notice from the Administrative Borrower prior to the date on which any payment is due to the Lenders
that Borrowers will not make such payment in full as and when required, Agent may assume that Borrowers have made (or will make) such payment in full to Agent on such date in immediately available funds and Agent may (but shall not be so required),
in reliance upon such assumption, distribute to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent Borrowers do not make such payment in full to Agent on the date when due, each Lender severally
shall repay to Agent on demand such amount distributed to such Lender, together with interest thereon at the Defaulting Lender Rate for each day from the date such amount is distributed to such Lender until the date repaid.
(b) Apportionment and Application.
(i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to
Defaulting Lenders, all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all
payments of fees and expenses received by Agent (other than fees or expenses that are for Agent’s separate account or for the separate account of Issuing Bank) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type
of Commitment or Obligation to which a particular fee or expense relates.
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(ii) Subject to
Section 2.4(b)(v), Section 2.4(d) and Section 2.4(e), all payments to be made hereunder by Borrowers shall
be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting
Lenders, to reduce the balance of the Revolving Loans outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under Applicable Law.
(iii) At any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect
to Defaulting Lenders, all payments remitted to Agent and all proceeds of Collateral received by Agent shall be applied as follows:
(A) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under
the Loan Documents, until paid in full,
(B) second, to pay any fees or premiums then due to Agent under the Loan
Documents, until paid in full,
(C) third, to pay interest due in respect of all Protective Advances, until paid in full,
(D) fourth, to pay the principal of all Protective Advances, until paid in full,
(E) fifth, [reserved],
(F) sixth, [reserved],
(G) seventh, to pay interest accrued in respect of the Swing Loans, until paid in full,
(H) eighth, to pay the principal of all Swing Loans, until paid in full,
(I) ninth, ratably, (1) ratably, to pay interest accrued in respect of the Revolving Loans (other than Protective Advances
and Swing Loans) until paid in full and (2) ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents, until paid in full,
(J) tenth, ratably
(1) ratably, to pay the principal of all Revolving Loans (other than Protective Advances and Swing Loans), until paid in full,
(2) to Agent, to be held by Agent, for the benefit of Issuing Bank (and for the ratable benefit of each of the Lenders
that have an obligation to pay to Agent, for the account of Issuing Bank, a share of each Letter of Credit Disbursement), as Cash Collateral in an amount up to 105% of the Letter of Credit Usage (to the extent permitted by applicable law, such Cash
Collateral shall be
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applied to the reimbursement of any Letter of Credit Disbursement as and when such disbursement occurs and, if a Letter of Credit expires undrawn, the Cash Collateral held by Agent in respect of
such Letter of Credit shall, to the extent permitted by Applicable Law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof),
(3) ratably , up to the amount (after taking into account any amounts previously paid pursuant to this clause (3). during the
continuation of the applicable Application Event) of the most recently established Bank Product Reserve, which amount was established prior to the occurrence of, and not in contemplation of, the subject Application Event, to
(y) the Bank Product Providers based upon amounts then certified by each applicable Bank Product Provider to Agent (in form
and substance satisfactory to Agent) to be due and payable to such Bank Product Provider on account of Bank Product Obligations (but not in excess of the Bank Product Reserve established for the Bank Product Obligations of such Bank Product
Provider), and
(z) with any balance to be paid to Agent in respect of the Bank Products Reserve, to be held by Agent, for
the ratable benefit of the Bank Product Providers, as Cash Collateral (which Cash Collateral may be released by Agent to the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts
due and payable with respect to Bank Product Obligations owed to the applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied
in full, the Cash Collateral held by Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof),
(K) eleventh,
(1) first, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any
of the Lenders under the Loan Documents, until paid in full, and
(2) second, to pay any other Obligations other than
Obligations owed to Defaulting Lenders (including being paid), ratably, to the Bank Product Providers on account of all amounts in excess of the Bank Product Reserve then due and payable in respect of Bank Product Obligations, with any balance to be
paid to Agent, to be held by Agent, for the ratable benefit of the Bank Product Providers, as Cash Collateral (which Cash Collateral may be released by Agent to the applicable Bank Product Provider and applied by such Bank Product Provider to the
payment or reimbursement of any amounts due and payable with respect to Bank Product Obligations owed to the applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all such Bank Product
Obligations are paid or otherwise satisfied in full, the Cash Collateral held by Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iii), beginning with
tier (A) hereof),
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(L) twelfth, ratably to pay any Obligations owed to Defaulting Lenders; and
(M) thirteenth, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under
Applicable Law.
For the avoidance of doubt, none of the payments in respect of any Obligations and none of the proceeds of Collateral
received from any Obligor that is not an “Eligible Contract Participant” (as defined in the Commodity Exchange Act) shall be applied to Excluded Swap Obligations.
(iv) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in
writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(e).
(v) In each instance, so long as no Application Event has occurred and is continuing,
Section 2.4(b)(ii) shall not apply to any payment made by Administrative Borrower to Agent and specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable)
under any provision of this Agreement or any other Loan Document.
(vi) For purposes of
Section 2.4(b)(iii), “paid in full” of a type of Obligation means payment in cash or immediately available funds of all amounts owing on account of such type of Obligation, including
interest accrued after the commencement of any Insolvency Proceeding, default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be or is allowed or disallowed in whole or in part in any
Insolvency Proceeding.
(vii) In the event of a direct conflict between the priority provisions of this
Section 2.4 and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest
extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, if the conflict relates to the provisions of Section 2.3(g)
and this Section 2.4, then the provisions of Section 2.3(g) shall control and govern, and if otherwise, then the terms and provisions of this
Section 2.4 shall control and govern.
(c) Reduction of Commitments.
(i) Revolver Commitments. The Revolver Commitments shall terminate on the applicable Maturity Date or earlier
termination thereof pursuant to the terms of this Agreement. Borrowers may reduce the Revolver Commitments, without premium or penalty, to an amount (which may be zero) not less than the sum of
(A) the Revolver Usage as of such date, plus
(B) the principal amount of all Revolving Loans not yet made as to which a request has been given by Administrative Borrower
under Section 2.3(a), plus
(C) the amount of all Letters of Credit not yet
issued as to which a request has been given by Administrative Borrower pursuant to Section 2.11(a).
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Each such reduction shall be in an amount which is not less than $10,000,000 (unless the
Revolver Commitments are being reduced to zero and the amount of the Revolver Commitments in effect immediately prior to such reduction are less than $5,000,000), shall be made by providing not less than one (1) Business Day’s prior
written notice to Agent, and shall be irrevocable; provided, that such notice may provide that such reduction is conditioned upon the effectiveness of other credit facilities or other transactions specified herein, in which case such
notice may be revoked or extended by Administrative Borrower (by notice to Agent on or prior to the specified effective date) if such condition is not satisfied. The Revolver Commitments, once reduced, may not be increased. Each such reduction of
the Revolver Commitments shall reduce the Revolver Commitments of each Lender proportionately in accordance with its ratable share thereof. In connection with any reduction in the Revolver Commitments prior to the applicable Maturity Date, if any
Loan Party or any of its Restricted Subsidiaries will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly
executed and delivered by the Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board of Governors.
(d) Optional Prepayments.
(i) Revolving Loans. Borrowers may prepay the principal of any Revolving Loan at any time in whole or in part
without premium or penalty, subject to Section 2.12(b)(ii).
(e) Mandatory Prepayments.
(i) Borrowing Base. Subject to Section 2.3(d)(ii), if an
Overadvance exists at any time, Borrowers shall, on one Business Day after Agent’s written demand, prepay the Obligations in an aggregate principal amount necessary to eliminate such Overadvance.
(ii) Indebtedness. Within three (3) Business Days of the date of incurrence by any Loan Party or any of its
Subsidiaries of any Indebtedness (other than Permitted Indebtedness), Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(f) in an amount equal to
100% of the Net Cash Proceeds received by such Person in connection with such incurrence. The provisions of this Section 2.4(e)(ii) shall not be deemed to be implied consent to any such incurrence
otherwise prohibited by the terms of this Agreement.
(f) Application of Payments. Each prepayment pursuant to
Section 2.4(e) shall,
(i) so long as no Application Event shall have
occurred and be continuing, be applied,
first, to the outstanding principal amount of any Protective
Advances (and any accrued and unpaid interest in respect thereof),
second, to any outstanding principal
amount of any Swing Loans (and any accrued and unpaid interest in respect thereof),
third, to any
outstanding principal amount of any other Revolving Loan until paid in full (and any accrued and unpaid interest in respect thereof), and
fourth, to Cash Collateralize the Letters of Credit in an amount equal to 102.5% of the then outstanding Letter
of Credit Usage, and
(ii) if an Application Event shall have occurred and be continuing, be applied in the manner set
forth in Section 2.4(b)(iii).
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At any time that an Overadvance no longer exists and as long as no Event of Default exists,
Agent shall transfer to any Deposit Account or Securities Account that is subject to a Control Agreement the amount of Cash Collateral that had been held as Cash Collateral under the fourth paragraph of this
Section 2.4(f).
(g) Dominion Account. The ledger balance in the main Dominion
Account as of the end of a Business Day shall be applied
first, to the outstanding principal amount of any
Protective Advances (and any accrued and unpaid interest in respect thereof),
second, to any outstanding
principal amount of any Swing Loans (and any accrued and unpaid interest in respect thereof),
third, to any
outstanding principal amount of any other Revolving Loan until paid in full (and any accrued and unpaid interest in respect thereof), and
fourth, to Cash Collateralize the Letters of Credit in an amount equal to 105% of the then outstanding Letter of
Credit Usage, and
in each case, at the beginning of the next Business Day, during any Cash Dominion Period. If a credit balance results from such
application, it shall not accrue interest in favor of Borrowers and shall be made available to Borrowers as long as no Event of Default exists.
2.5 Promise to Pay; Promissory Notes.
(a) Borrowers agree to pay all of the Obligations (including principal, interest, premiums, if any, fees, costs, and expenses (including Lender
Group Expenses), but excluding the Bank Product Obligations) in full on the applicable Maturity Date or, if earlier, on the date on which the Obligations (other than the Bank Product Obligations) become due and payable pursuant to the terms of this
Agreement. Borrowers agree that their obligations contained in the first sentence of this Section 2.5(a) shall survive payment or satisfaction in full of all other Obligations.
(b) Any Lender may request that any portion of its Commitments or the Loans made by it be evidenced by one or more promissory notes. In such
event, Borrowers shall execute and deliver to such Lender the requested promissory notes payable to the order of such Lender in a form furnished by Agent and reasonably satisfactory to Administrative Borrower. Thereafter, the portion of the
Commitments and Loans evidenced by such promissory notes and interest thereon shall at all times be represented by one or more promissory notes in such form payable to the order of the payee named therein.
2.6 Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations.
(a) Interest Rates. Except as provided in Section 2.6(c) and
Section 2.12(d), all Obligations (except for undrawn Letters of Credit) that have been charged to the Loan Account pursuant to the terms hereof shall bear interest as follows:
(i) if the relevant Obligation is a SOFR Loan, at a per annum rate equal to Term SOFR plus the SOFR Margin, and
(ii) otherwise, at a per annum rate equal to the Base Rate plus the Base Rate Margin.
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(b) Letter of Credit Fee. Borrowers shall pay Agent (for the ratable benefit of the
Revolving Lenders), a Letter of Credit fee (the “Letter of Credit Fee”) (which fee shall be in addition to the fronting fees and commissions, other fees, charges and expenses set forth in
Section 2.11(k)) that shall accrue at a per annum rate equal to the Letter of Credit Margin times the average amount of the Letter of Credit Usage during the immediately preceding quarter (or if an
Event of Default has occurred, month).
(c) Default Rate. (i) Automatically upon the occurrence and during the continuation of
an Event of Default under Section 7.4 or 7.5 and (ii) upon the occurrence and during the continuation of any other Event of Default (other than an Event of Default under
Section 7.4 or 7.5), at the direction of Agent or the Required Lenders, and upon written notice by Agent to Administrative Borrower (provided, that such notice shall not be required during
the continuation of an Event of Default under Section 7.1), (A) all Loans and all Obligations (except for undrawn Letters of Credit) that have been charged to the Loan Account pursuant to the terms
hereof shall bear interest at a per annum rate equal to two percentage points above the per annum rate otherwise applicable thereunder, and (B) the Letter of Credit Fee shall be increased to two percentage points above the per annum rate
otherwise applicable hereunder.
(d) Payment. Except to the extent provided to the contrary in
Section 2.10, Section 2.11(k) or Section 2.12(a),
(i) all interest and all other fees payable hereunder or under any of the other Loan Documents (other than Letter of Credit
Fees) shall be due and payable, in arrears, on the first day of each quarter; provided, that if an Event of Default has occurred and is continuing, such amounts shall be due and payable, in arrears, on the first day of each month, and
(ii) all Letter of Credit Fees payable hereunder, and all fronting fees and all commissions, other fees, charges and
expenses provided for in Section 2.11(k) shall be due and payable, in arrears, on the first Business Day of each quarter; provided, that if an Event of Default has occurred and is
continuing, such Letter of Credit Fees shall be due and payable, in arrears, on the first Business Day of each month.
Borrowers hereby authorize Agent,
from time to time without prior notice to Borrowers, to charge to the Loan Account
(A) on the first day of each calendar
quarter, all interest accrued during the prior calendar quarter on the Revolving Loans hereunder,
(B) on the first
Business Day of each calendar quarter, all Letter of Credit Fees accrued or chargeable hereunder during the prior calendar quarter,
(C) as and when incurred or accrued, all fees and costs provided for in
Section 2.10(a) or (b),
(D) on the first day of each calendar
quarter, the Unused Line Fee accrued during the prior calendar quarter pursuant to Section 2.10(b),
(E) as and when due and payable, all other fees payable hereunder or under any of the other Loan Documents,
(F) as and when incurred or accrued, all other Lender Group Expenses, and
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(G) as and when due and payable all other payment obligations payable under
any Loan Document or any Bank Product Agreement (including any amounts due and payable to the Bank Product Providers in respect of Bank Products).
All
amounts (including interest, fees, costs, expenses, Lender Group Expenses, or other amounts payable hereunder or under any other Loan Document or under any Bank Product Agreement) charged to the Loan Account shall thereupon constitute Revolving
Loans hereunder, shall constitute Obligations hereunder, and shall initially accrue interest at the rate then applicable to Revolving Loans that are Base Rate Loans (unless and until converted into SOFR Loans in accordance with the terms of this
Agreement).
(e) Computation. All interest and fees chargeable under the Loan Documents shall be computed on the basis of a 360 day
year, in each case, for the actual number of days elapsed in the period during which the interest or fees accrue. In the event the Base Rate is changed from time to time hereafter, the rates of interest hereunder based upon the Base Rate
automatically and immediately shall be increased or decreased by an amount equal to such change in the Base Rate.
(f) Intent to Limit
Charges to Maximum Lawful Rate. In no event shall the interest rate or rates payable under this Agreement, plus any other amounts paid in connection herewith, exceed the highest rate permissible under any law that a court of competent
jurisdiction shall, in a final determination, deem applicable. Borrowers and the Lender Group, in executing and delivering this Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated within it;
provided, that anything contained herein to the contrary notwithstanding, if such rate or rates of interest or manner of payment exceeds the maximum allowable under Applicable Law, then, ipso facto, as of the date of this Agreement,
Borrowers are and shall be liable only for the payment of such maximum amount as is allowed by law, and payment received from Borrowers in excess of such legal maximum, whenever received, shall be applied to reduce the principal balance of the
Obligations to the extent of such excess.
(g) Term SOFR Conforming Changes. In connection with the use or administration of Term
SOFR, Agent will have the right (in consultation with the Par Borrower) to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming
Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. Agent will promptly notify Administrative Borrower and the Lenders of the effectiveness of any Conforming Changes in
connection with the use or administration of Term SOFR.
2.7 Crediting Payments. The receipt of any payment item by
Agent shall not be required to be considered a payment on account unless such payment item is a wire transfer of immediately available funds made to Agent’s Account or unless and until such payment item is honored when presented for payment.
Should any payment item not be honored when presented for payment, then Borrowers shall be deemed not to have made such payment. Anything to the contrary contained herein notwithstanding, any payment item shall be deemed received by Agent only if it
is received into Agent’s Account on a Business Day on or before 1:30 p.m. If any payment item is received into Agent’s Account on a non-Business Day or after 1:30 p.m. on a Business Day (unless
Agent, in its sole discretion, elects to credit it on the date received), it shall be deemed to have been received by Agent as of the opening of business on the immediately following Business Day.
2.8 Designated Account. Agent is authorized to make the Revolving Loans, and Issuing Bank is authorized to issue the
Letters of Credit, under this Agreement based upon telephonic or other instructions received from anyone purporting to be an Authorized Person or, without instructions, if pursuant to Section 2.6(d).
Borrowers agree to establish and maintain the Designated Account with the Designated Account Bank for the purpose of receiving the proceeds of the Revolving Loans requested by Borrowers and made by Agent or the Lenders hereunder. Unless otherwise
agreed by Agent and Administrative Borrower, any Revolving Loan or Swing Loan requested by Borrowers and made by Agent or the Lenders hereunder shall be made to the Designated Account.
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2.9 Maintenance of Loan Account; Statements of Obligations. Agent shall
maintain an account on its books in the name of Borrowers (the “Loan Account”) on which Borrowers will be charged with all Revolving Loans (including Extraordinary Advances and Swing Loans) made by Agent, Swing Lender, or
the Lenders to Borrowers or for Borrowers’ account, the Letters of Credit issued or arranged by Issuing Bank for Borrowers’ account, and with all other payment Obligations hereunder or under the other Loan Documents, including, accrued
interest, fees and expenses, and Lender Group Expenses. In accordance with Section 2.7, the Loan Account will be credited with all payments received by Agent from Borrowers or for Borrowers’
account. Agent shall make available to Borrowers monthly statements regarding the Loan Account, including the principal amount of the Revolving Loans, interest accrued hereunder, fees accrued or charged hereunder or under the other Loan Documents,
and a summary itemization of all charges and expenses constituting Lender Group Expenses accrued hereunder or under the other Loan Documents, and each such statement, absent manifest error, shall be conclusively presumed to be correct and accurate
and constitute an account stated between Borrowers and the Lender Group unless, within 45 days after Agent first makes such a statement available to Borrowers, Borrowers shall deliver to Agent written objection thereto describing the error or errors
contained in such statement.
2.10 Fees.
(a) Agent Fees. Borrowers shall pay to Agent, for the account of Agent, as and when due and payable under the terms of the Fee Letter,
the fees set forth in the Fee Letter.
(b) Unused Line Fee. Borrowers shall pay to Agent, for the ratable account of the Revolving
Lenders, an unused line fee (the “Unused Line Fee”) in an amount equal to the Applicable Unused Line Fee Percentage per annum times the greater of (x) the result of (i) the average aggregate amount of the Revolver
Commitments, calculated as of the end of each day in the applicable period, less (ii) the Average Revolver Usage (excluding the amount of outstanding Swing Loans) during the immediately preceding quarter (or portion thereof) and (y) zero,
which Unused Line Fee shall be due and payable, in arrears, on the first day of each quarter (or, if an Event of Default has occurred and is continuing, on the first day of each month) prior to the date on which the Obligations are paid in full and
on the date on which the Obligations are paid in full.
(c) Field Examination and Other Fees. Borrowers shall pay to Agent, field
examination, appraisal, and valuation fees and charges, as and when incurred or chargeable, in accordance with Section 5.7(c).
2.11 Letters of Credit.
(a) Subject to the terms and conditions of this Agreement, upon the request of Administrative Borrower made in accordance herewith, and prior
to the applicable Maturity Date, Issuing Bank agrees to issue a requested standby Letter of Credit or a sight commercial Letter of Credit for the account of Borrowers or any Obligor (provided, that, any Letter of Credit issued for the
benefit of any Obligor that is not a Borrower shall be issued naming a Borrower as the account party on any such Letter of Credit but such Letter of Credit may contain a statement that it is being issued for the benefit of such Obligor). By
submitting a request to Issuing Bank for the issuance of a Letter of Credit, Borrowers shall be deemed to have requested that Issuing Bank issue the requested Letter of Credit. Each request for the issuance of a Letter of Credit, or the amendment or
extension of any outstanding Letter of Credit, shall be (i) irrevocable and made in writing by an Authorized Person, (ii) delivered to Agent and Issuing Bank via telefacsimile or other electronic method of transmission reasonably
acceptable to Agent and Issuing Bank and reasonably in advance of the requested date of issuance, amendment, or extension, and (iii) subject to Issuing Bank’s authentication procedures with results satisfactory to Issuing Bank. Each such
request shall be in form and substance reasonably satisfactory to Agent and Issuing Bank and
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(i) shall specify
(A) the amount of such Letter of Credit,
(B) the date of issuance, amendment, or extension of such Letter of Credit,
(C) the proposed expiration date of such Letter of Credit,
(D) the name and address of the beneficiary of the Letter of Credit, and
(E) such other information (including, the conditions to drawing, and, in the case of an amendment or extension, identification
of the Letter of Credit to be so amended or extended) as shall be necessary to prepare, amend, or extend such Letter of Credit, and
(ii) shall be accompanied by such Issuer Documents as Agent or Issuing Bank may request or require, to the extent that such
requests or requirements are consistent with the Issuer Documents that Issuing Bank generally requests for Letters of Credit in similar circumstances. Issuing Bank’s records of the content of any such request will be conclusive.
Anything contained herein to the contrary notwithstanding, Issuing Bank may, but shall not be obligated to, issue a Letter of Credit that (1) supports
the obligations of an Obligor in respect of (x) a lease of real property, or (y) an employment contract or (2) is a documentary letter of credit, commercial letter of credit, foreign guaranty, documentary bankers’ acceptance or
similar instrument.
(b) Issuing Bank shall have no obligation to issue a Letter of Credit if any of the following would result after
giving effect to the requested issuance:
(i) the Letter of Credit Usage would exceed the Letter of Credit Sublimit, or
(ii) the Letter of Credit Usage attributable to Letters of Credit issued by any Issuing Bank would exceed the Individual
Letter of Credit Sublimit of such Issuing Bank, or
(iii) the Letter of Credit Usage would exceed the Maximum Revolver
Amount less the outstanding amount of Revolving Loans (including Swing Loans), or
(iv) the Letter of Credit Usage would
exceed the Borrowing Base at such time less the outstanding principal balance of the Revolving Loans (inclusive of Swing Loans) at such time.
(c) In the event there is a Defaulting Lender as of the date of any request for the issuance of a Letter of Credit, Issuing Bank shall not be
required to issue or arrange for such Letter of Credit to the extent
(i) the Defaulting Lender’s Letter of Credit
Exposure with respect to such Letter of Credit may not be reallocated pursuant to Section 2.3(g)(ii), or
(ii) Issuing Bank has not otherwise entered into arrangements reasonably satisfactory to it and Administrative Borrower to
eliminate Issuing Bank’s risk with respect to the participation in such Letter of Credit of the Defaulting Lender, which arrangements may include Borrowers Cash Collateralizing such Defaulting Lender’s Letter of Credit Exposure in
accordance with Section 2.3(g)(ii). Additionally,
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Issuing Bank shall have no obligation to issue or extend a Letter of Credit if
(A) any order, judgment, or decree of any Governmental Authority or arbitrator shall, by its terms, purport to enjoin or
restrain Issuing Bank from issuing such Letter of Credit, or any law applicable to Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over Issuing Bank shall prohibit
or request that Issuing Bank refrain from the issuance of letters of credit generally or such Letter of Credit in particular, or
(B) the issuance of such Letter of Credit would violate one or more policies of Issuing Bank applicable to letters of credit
generally.
(d) Any Issuing Bank (other than Wells Fargo or any of its Affiliates) shall notify Agent in writing no later than the Business
Day prior to the Business Day on which such Issuing Bank issues any Letter of Credit. In addition, each Issuing Bank (other than Wells Fargo or any of its Affiliates) shall, on the first Business Day of each week, submit to Agent a report detailing
the daily undrawn amount of each Letter of Credit issued by such Issuing Bank during the prior calendar week. Borrowers and the Lender Group hereby acknowledge and agree that all Existing Letters of Credit shall constitute Letters of Credit under
this Agreement on and after the Closing Date with the same effect as if such Existing Letters of Credit were issued by Issuing Bank at the request of Borrowers on the Closing Date. Each Letter of Credit shall be in form and substance reasonably
acceptable to Issuing Bank, including the requirement that the amounts payable thereunder must be payable in Dollars. If Issuing Bank makes a payment under a Letter of Credit, Borrowers shall pay to Agent an amount equal to the applicable Letter of
Credit Disbursement on the Business Day such Letter of Credit Disbursement is made and, in the absence of such payment, the amount of the Letter of Credit Disbursement immediately and automatically shall be deemed to be a Revolving Loan hereunder
(notwithstanding any failure to satisfy any condition precedent set forth in Section 3) and, initially, shall bear interest at the rate then applicable to Revolving Loans that are Base Rate Loans. If a
Letter of Credit Disbursement is deemed to be a Revolving Loan hereunder, Borrowers’ obligation to pay the amount of such Letter of Credit Disbursement to Issuing Bank shall be automatically converted into an obligation to pay the resulting
Revolving Loan. Promptly following receipt by Agent of any payment from Borrowers pursuant to this paragraph, Agent shall distribute such payment to Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to
Section 2.11(e) to reimburse Issuing Bank, then to such Revolving Lenders and Issuing Bank as their interests may appear.
(e) Promptly following receipt of a notice of a Letter of Credit Disbursement pursuant to
Section 2.11(d), each Revolving Lender agrees to fund its Pro Rata Share of any Revolving Loan deemed made pursuant to Section 2.11(d) on the same terms
and conditions as if Borrowers had requested the amount thereof as a Revolving Loan and Agent shall promptly pay to Issuing Bank the amounts so received by it from the Revolving Lenders. By the issuance of a Letter of Credit (or an amendment or
extension of a Letter of Credit) and without any further action on the part of Issuing Bank or the Revolving Lenders, Issuing Bank shall be deemed to have granted to each Revolving Lender, and each Revolving Lender shall be deemed to have purchased,
a participation in each Letter of Credit issued by Issuing Bank, in an amount equal to its Pro Rata Share of such Letter of Credit, and each such Revolving Lender agrees to pay to Agent, for the account of Issuing Bank, such Revolving Lender’s
Pro Rata Share of any Letter of Credit Disbursement made by Issuing Bank under the applicable Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to Agent,
for the account of Issuing Bank, such Revolving Lender’s Pro Rata Share of each Letter of Credit Disbursement made by Issuing Bank and not reimbursed by Borrowers on the date due as provided in
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Section 2.11(d), or of any reimbursement payment that is required to be refunded (or that Agent or Issuing Bank elects, based upon the advice of
counsel, to refund) to Borrowers for any reason. Each Revolving Lender acknowledges and agrees that its obligation to deliver to Agent, for the account of Issuing Bank, an amount equal to its respective Pro Rata Share of each Letter of Credit
Disbursement pursuant to this Section 2.11(e) shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or Default or
the failure to satisfy any condition set forth in Section 3. If any such Revolving Lender fails to make available to Agent the amount of such Revolving Lender’s Pro Rata Share of a Letter of
Credit Disbursement as provided in this Section, such Revolving Lender shall be deemed to be a Defaulting Lender and Agent (for the account of Issuing Bank) shall be entitled to recover such amount on demand from such Revolving Lender together with
interest thereon at the Defaulting Lender Rate until paid in full.
(f) Each Borrower agrees to indemnify, defend and hold harmless each
member of the Lender Group (including Issuing Bank and its branches, Affiliates, and correspondents) and each such Person’s respective directors, officers, employees, attorneys and agents (each, including Issuing Bank, a “Letter of
Credit Related Person”) (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable and
documented, fees and disbursements of attorneys, experts, or consultants and all other costs and expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and
irrespective of whether suit is brought), which may be incurred by or awarded against any such Letter of Credit Related Person (other than Taxes, which shall be governed by Section 2.18) (the “Letter of Credit Indemnified
Costs”), and which arise out of or in connection with, or as a result of:
(i) any Letter of Credit or any pre-advice of its issuance;
(ii) any transfer, sale, delivery, surrender or endorsement
(or lack thereof) of any Drawing Document at any time(s) held by any such Letter of Credit Related Person in connection with any Letter of Credit;
(iii) any action or proceeding arising out of, or in connection with, any Letter of Credit (whether administrative, judicial or
in connection with arbitration), including any action or proceeding to compel or restrain any presentation or payment under any Letter of Credit, or for the wrongful dishonor of, or honoring a presentation under, any Letter of Credit;
(iv) any independent undertakings issued by the beneficiary of any Letter of Credit;
(v) any unauthorized instruction or request made to Issuing Bank in connection with any Letter of Credit or requested Letter of
Credit, or any error, omission, interruption or delay in such instruction or request, whether transmitted by mail, courier, electronic transmission, SWIFT, or any other telecommunication including communications through a correspondent;
(vi) an adviser, confirmer or other nominated person seeking to be reimbursed, indemnified or compensated;
(vii) any third party seeking to enforce the rights of an applicant, beneficiary, nominated person, transferee, assignee of
Letter of Credit proceeds or holder of an instrument or document;
(viii) the fraud, forgery or illegal action of parties
other than the Letter of Credit Related Person;
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(ix) any prohibition on payment or delay in payment of any amount payable by
Issuing Bank to a beneficiary or transferee beneficiary of a Letter of Credit arising out of Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions;
(x) Issuing Bank’s performance of the obligations of a confirming institution or entity that wrongfully dishonors a
confirmation;
(xi) any foreign language translation provided to Issuing Bank in connection with any Letter of Credit;
(xii) any foreign law or usage as it relates to Issuing Bank’s issuance of a Letter of Credit in support of a foreign
guaranty including the expiration of such guaranty after the related Letter of Credit expiration date and any resulting drawing paid by Issuing Bank in connection therewith; or
(xiii) the acts or omissions, whether rightful or wrongful, of any present or future de jure or de facto governmental or
regulatory authority or cause or event beyond the control of the Letter of Credit Related Person;
in each case, including that resulting from the Letter
of Credit Related Person’s own negligence; provided, that such indemnity shall not be available to any Letter of Credit Related Person claiming indemnification under clauses (i) through (xiii)
above to the extent that such Letter of Credit Indemnified Costs may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross
negligence or willful misconduct of the Letter of Credit Related Person claiming indemnity. Borrowers hereby agree to pay the Letter of Credit Related Person claiming indemnity on demand from time to time all amounts owing under this
Section 2.11(f). If and to the extent that the obligations of Borrowers under this Section 2.11(f) are unenforceable for any reason, Borrowers agree to
make the maximum contribution to the Letter of Credit Indemnified Costs permissible under Applicable Law. This indemnification provision shall survive termination of this Agreement and all Letters of Credit.
(g) The liability of Issuing Bank (or any other Letter of Credit Related Person) under, in connection with or arising out of any Letter of
Credit (or pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to direct damages suffered by Borrowers that are caused directly by Issuing Bank’s gross
negligence or willful misconduct in
(i) honoring a presentation under a Letter of Credit that on its face does not at
least substantially comply with the terms and conditions of such Letter of Credit,
(ii) failing to honor a presentation
under a Letter of Credit that strictly complies with the terms and conditions of such Letter of Credit, or
(iii) retaining
Drawing Documents presented under a Letter of Credit.
Borrowers’ aggregate remedies against Issuing Bank and any Letter of Credit Related Person for
wrongfully honoring a presentation under any Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by Borrowers to Issuing Bank in respect of the honored presentation in connection with
such Letter of Credit under Section 2.11(d), plus interest at the rate then applicable to Base Rate Loans hereunder. Borrowers shall take action to avoid and mitigate the amount of any damages claimed
against Issuing Bank or any other Letter of Credit Related Person, including by enforcing its rights against the beneficiaries of the Letters of Credit. Any claim by Borrowers under or in connection with any Letter of Credit shall be reduced by an
amount equal to the sum of (x) the amount (if any) saved by Borrowers as a result of the breach or alleged wrongful conduct complained of, and (y) the amount (if any) of the loss that would have been avoided had Borrowers taken all
reasonable steps to mitigate any loss, and in case of a claim of wrongful dishonor, by specifically and timely authorizing Issuing Bank to effect a cure.
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(h) Borrowers are responsible for the final text of the Letter of Credit as issued by
Issuing Bank, irrespective of any assistance Issuing Bank may provide such as drafting or recommending text or by Issuing Bank’s use or refusal to use text submitted by Borrowers. Borrowers understand that the final form of any Letter of
Credit may be subject to such revisions and changes as are deemed necessary or appropriate by Issuing Bank, and Borrowers hereby consent to such revisions and changes not materially different from the application executed in connection therewith.
Borrowers are solely responsible for the suitability of the Letter of Credit for Borrowers’ purposes. If Borrowers request Issuing Bank to issue a Letter of Credit for an affiliated or unaffiliated third party (an “Account
Party”),
(i) such Account Party shall have no rights against Issuing Bank;
(ii) Borrowers shall be responsible for the application and obligations under this Agreement; and
(iii) communications (including notices) related to the respective Letter of Credit shall be among Issuing Bank and Borrowers.
Borrowers will examine the copy of the Letter of Credit and any other documents sent by Issuing Bank in connection therewith and shall promptly notify
Issuing Bank (not later than three (3) Business Days following Administrative Borrower’s receipt of documents from Issuing Bank) of any non-compliance with Borrowers’ instructions and of any
discrepancy in any document under any presentment or other irregularity. Borrowers understand and agree that Issuing Bank is not required to extend the expiration date of any Letter of Credit for any reason. With respect to any Letter of Credit
containing an “automatic amendment” to extend the expiration date of such Letter of Credit, Issuing Bank, in its sole and absolute discretion, may give notice of non-extension of such Letter of
Credit and, if Borrowers do not at any time want the then current expiration date of such Letter of Credit to be extended, Borrowers will so notify Agent and Issuing Bank at least 30 calendar days before Issuing Bank is required to notify the
beneficiary of such Letter of Credit or any advising bank of such non-extension pursuant to the terms of such Letter of Credit.
(i) Borrowers’ reimbursement and payment obligations under this Section 2.11 are absolute,
unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever, including:
(i) any lack of validity, enforceability or legal effect of any Letter of Credit, any Issuer Document, this Agreement, or any
Loan Document, or any term or provision therein or herein;
(ii) payment against presentation of any draft, demand or claim
for payment under any Drawing Document that does not comply in whole or in part with the terms of the applicable Letter of Credit or which proves to be fraudulent, forged or invalid in any respect or any statement therein being untrue or inaccurate
in any respect, or which is signed, issued or presented by a Person or a transferee of such Person purporting to be a successor or transferee of the beneficiary of such Letter of Credit;
(iii) Issuing Bank or any of its branches or Affiliates being the beneficiary of any Letter of Credit;
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(iv) Issuing Bank or any correspondent honoring a drawing against a Drawing
Document up to the amount available under any Letter of Credit even if such Drawing Document claims an amount in excess of the amount available under the Letter of Credit;
(v) the existence of any claim, set-off, defense or other right that any Borrower, any
of its Restricted Subsidiaries or Holdings may have at any time against any beneficiary or transferee beneficiary, any assignee of proceeds, Issuing Bank or any other Person;
(vi) Issuing Bank or any correspondent honoring a drawing upon receipt of an electronic presentation under a Letter of Credit
requiring the same, regardless of whether the original Drawing Documents arrive at Issuing Bank’s counters or are different from the electronic presentation;
(vii) any other event, circumstance or conduct whatsoever, whether or not similar to any of the foregoing that might, but for
this Section 2.11(i), constitute a legal or equitable defense to or discharge of, or provide a right of set-off against, any Borrower’s or any of its
Subsidiaries’ reimbursement and other payment obligations and liabilities, arising under, or in connection with, any Letter of Credit, whether against Issuing Bank, the beneficiary or any other Person; or
(viii) the fact that any Default or Event of Default shall have occurred and be continuing; or
(ix) Issuing Bank or any correspondent honoring a drawing upon receipt of an electronic presentation under a Letter of Credit
requiring the same, regardless of whether the original Drawing Documents arrive at Issuing Bank’s counters or are different from the electronic presentation;
provided, that subject to Section 2.11(g) above, the foregoing shall not release Issuing Bank
from such liability to Borrowers as may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction against Issuing Bank following reimbursement or payment of the obligations
and liabilities, including reimbursement and other payment obligations, of Borrowers to Issuing Bank arising under, or in connection with, this Section 2.11 or any Letter of Credit.
(j) Without limiting any other provision of this Agreement, Issuing Bank and each other Letter of Credit Related Person (if applicable) shall
not be responsible to Borrowers for, and Issuing Bank’s rights and remedies against Borrowers and the obligation of Borrowers to reimburse Issuing Bank for each drawing under each Letter of Credit shall not be impaired by:
(i) honor of a presentation under any Letter of Credit that on its face substantially complies with the terms and conditions of
such Letter of Credit, even if the Letter of Credit requires strict compliance by the beneficiary;
(ii) honor of a
presentation of any Drawing Document that appears on its face to have been signed, presented or issued (A) by any purported successor or transferee of any beneficiary or other Person required to sign, present or issue such Drawing Document or
(B) under a new name of the beneficiary;
(iii) acceptance as a draft of any written or electronic demand or request
for payment under a Letter of Credit, even if nonnegotiable or not in the form of a draft or notwithstanding any requirement that such draft, demand or request bear any or adequate reference to the Letter of Credit;
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(iv) the identity or authority of any presenter or signer of any Drawing
Document or the form, accuracy, genuineness or legal effect of any Drawing Document (other than Issuing Bank’s determination that such Drawing Document appears on its face substantially to comply with the terms and conditions of the Letter of
Credit);
(v) acting upon any instruction or request relative to a Letter of Credit or requested Letter of Credit that
Issuing Bank in good faith believes to have been given by a Person authorized to give such instruction or request;
(vi)
any errors, omissions, interruptions or delays in transmission or delivery of any message, advice or document (regardless of how sent or transmitted) or for errors in interpretation of technical terms or in translation or any delay in giving or
failing to give notice to any Borrower;
(vii) any acts, omissions or fraud by, or the insolvency of, any beneficiary, any
nominated person or entity or any other Person or any breach of contract between any beneficiary and any Borrower or any of the parties to the underlying transaction to which the Letter of Credit relates;
(viii) assertion or waiver of any provision of the ISP or UCP that primarily benefits an issuer of a letter of credit,
including any requirement that any Drawing Document be presented to it at a particular hour or place;
(ix) payment to any
presenting bank (designated or permitted by the terms of the applicable Letter of Credit) claiming that it rightfully honored or is entitled to reimbursement or indemnity under Standard Letter of Credit Practice applicable to it;
(x) acting or failing to act as required or permitted under Standard Letter of Credit Practice applicable to where Issuing Bank
has issued, confirmed, advised or negotiated such Letter of Credit, as the case may be;
(xi) honor of a presentation after
the expiration date of any Letter of Credit notwithstanding that a presentation was made prior to such expiration date and dishonored by Issuing Bank if subsequently Issuing Bank or any court or other finder of fact determines such presentation
should have been honored;
(xii) dishonor of any presentation that does not strictly comply or that is fraudulent, forged
or otherwise not entitled to honor; or
(xiii) honor of a presentation that is subsequently determined by Issuing Bank to
have been made in violation of international, federal, state or local restrictions on the transaction of business with certain prohibited Persons.
(k) Borrowers shall pay immediately upon demand to Agent for the account of Issuing Bank as
non-refundable fees, commissions, and charges (it being acknowledged and agreed that any charging of such fees, commissions, and charges to the Loan Account pursuant to the provisions of
Section 2.6(d) shall be deemed to constitute a demand for payment thereof for the purposes of this Section 2.11(k)):
(i) a fronting fee which shall be imposed by Issuing Bank equal to 0.125% per annum times the average amount of the Letter of
Credit Usage during the immediately preceding quarter (or portion thereof), plus
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(ii) any and all other customary commissions, fees and charges then in
effect imposed by, and any and all expenses incurred by, Issuing Bank, or by any adviser, confirming institution or entity or other nominated person, relating to Letters of Credit, at the time of issuance of any Letter of Credit and upon the
occurrence of any other activity with respect to any Letter of Credit (other than Taxes, which shall be governed by Section 2.18) (including transfers, assignments of proceeds, amendments,
drawings, extensions or cancellations).
(l) If by reason of (x) any Change in Law, or (y) compliance by Issuing Bank or any
other member of the Lender Group with any direction, request, or requirement (irrespective of whether having the force of law) of any Governmental Authority or monetary authority including, Regulation D of the Board of Governors as from time to time
in effect (and any successor thereto):
(i) any reserve, deposit, or similar requirement is or shall be imposed or modified
in respect of any Letter of Credit issued or caused to be issued hereunder or hereby, or any Loans or obligations to make Loans hereunder or hereby, or
(ii) there shall be imposed on Issuing Bank or any other member of the Lender Group any other condition (including, by reason
of a Change in Law only (and not otherwise), Taxes, other than (A) Indemnified Taxes and (B) Taxes described in clauses (ii) through (iv) of the definition of Excluded Taxes or that are Other Connection Taxes) regarding any Letter of
Credit, Loans, or obligations to make Loans hereunder,
and the result of the foregoing is to increase, directly or indirectly, the cost to Issuing Bank or
any other member of the Lender Group of issuing, making, participating in, or maintaining any Letter of Credit or to reduce the amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a reasonable period after
the additional cost is incurred or the amount received is reduced, notify Borrowers, and Borrowers shall pay within 30 days after demand therefor, such amounts as Agent may specify to be necessary to compensate Issuing Bank or any other member of
the Lender Group for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the rate then applicable to Base Rate Loans hereunder; provided, that
(A) Borrowers shall not be required to provide any compensation pursuant to this Section 2.11(l) for any such amounts incurred more than 180 days prior to the date on which the demand for payment
of such amounts is first made to Borrowers, and (B) if an event or circumstance giving rise to such amounts is retroactive, then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof. The determination by Agent of any amount due pursuant to this Section 2.11(l), as set forth in a certificate setting forth the calculation thereof in reasonable
detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.
(m)
Each standby Letter of Credit shall expire not later than the date that is 12 months after the date of the issuance of such Letter of Credit; provided, that any standby Letter of Credit may provide for the automatic extension thereof
for any number of additional periods each of up to one year in duration; provided, further, that with respect to any Letter of Credit which extends beyond the applicable Maturity Date, Letter of Credit
Collateralization shall be provided therefor on or before the date that is five Business Days prior to the Maturity Date. Each commercial Letter of Credit shall expire on the earlier of (i) 120 days after the date of the issuance of such commercial
Letter of Credit and (ii) five Business Days prior to the applicable Maturity Date.
(n) If (i) any Event of Default shall occur
and be continuing, or (ii) Availability shall at any time be less than zero, then on the Business Day following the date when Administrative Borrower receives notice from Agent or the Required Lenders (or, if the maturity of the Obligations has
been accelerated, Revolving Lenders with Letter of Credit Exposure representing greater than 50% of the total Letter of Credit
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Exposure) demanding Letter of Credit Collateralization pursuant to this Section 2.11(n) upon such demand, Borrowers shall provide Letter of Credit
Collateralization with respect to the then existing Letter of Credit Usage. If Borrowers fail to provide Letter of Credit Collateralization as required by this Section 2.11(n), the Revolving Lenders may
(and, upon direction of Agent, shall) advance, as Revolving Loans the amount of the Cash Collateral required pursuant to the Letter of Credit Collateralization provision so that the then existing Letter of Credit Usage is Cash Collateralized in
accordance with the Letter of Credit Collateralization provision (whether or not the Revolver Commitments have terminated, an Overadvance exists or the conditions in Section 3 are satisfied).
(o) Unless otherwise expressly agreed by Issuing Bank and Administrative Borrower when a Letter of Credit is issued (including in any such
agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit.
(p) Issuing Bank shall be deemed to have acted with due diligence and reasonable care if Issuing Bank’s conduct is in accordance with
Standard Letter of Credit Practice or in accordance with this Agreement.
(q) In the event of a direct conflict between the provisions of
this Section 2.11 and any provision contained in any Issuer Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be
in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.11 shall control and govern.
(r) The provisions of this Section 2.11 shall survive the termination of this Agreement and the
repayment in full of the Obligations with respect to any Letters of Credit that remain outstanding.
(s) At Borrowers’ costs and
expense, Borrowers shall execute and deliver to Issuing Bank such additional certificates, instruments or documents and take such additional action as may be reasonably requested by Issuing Bank to enable Issuing Bank to issue any Letter of Credit
pursuant to this Agreement and related Issuer Document, to protect, exercise or enforce Issuing Banks’ rights and interests under this Agreement or to give effect to the terms and provisions of this Agreement or any Issuer Document. Each
Borrower irrevocably appoints Issuing Bank as its attorney-in-fact and authorizes Issuing Bank, without notice to Borrowers, to execute and deliver ancillary documents
and letters customary in the letter of credit business that may include but are not limited to advisements, indemnities, checks, bills of exchange and issuance documents. The power of attorney granted by the Borrowers is limited solely to such
actions related to the issuance, confirmation or amendment of any Letter of Credit and to ancillary documents or letters customary in the letter of credit business. This appointment is coupled with an interest.
2.12 SOFR Options.
(a) Interest and Interest Payment Dates. In lieu of having interest charged at the rate based upon the Base Rate, Borrowers shall have
the option, subject to Section 2.12(b) below (the “SOFR Option”) to have interest on all or a portion of the Revolving Loans be charged (whether at the time when made (unless
otherwise provided herein), upon conversion from a Base Rate Loan to a SOFR Loan, or upon continuation of a SOFR Loan as a SOFR Loan) at a rate of interest based upon Term SOFR. Interest on SOFR Loans shall be payable on the earliest of
(i) the last day of the Interest Period applicable thereto; provided, that subject to the following clauses
(ii) and (iii), in the case of any Interest Period greater than three months in duration, interest shall be payable at three month intervals after the commencement of the applicable Interest Period and on the last day of such
Interest Period,
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(ii) the date on which all or any portion of the Obligations are accelerated
pursuant to the terms hereof, or
(iii) the date on which this Agreement is terminated pursuant to the terms hereof.
On the last day of each applicable Interest Period, unless Borrowers have properly exercised the SOFR Option with respect thereto, the interest rate
applicable to such SOFR Loan automatically shall convert to the rate of interest then applicable to Base Rate Loans of the same type hereunder. At any time that an Event of Default has occurred and is continuing, Borrowers no longer shall have the
option to request that Revolving Loans bear interest at a rate based upon Term SOFR, provided that upon the occurrence of any Event of Default described in Section 7.4 or
Section 7.5, the Borrowers’ option to request that Revolving Loans bear interest at a rate based upon Term SOFR shall automatically be suspended.
(b) SOFR Election.
(i) Borrowers may, at any time and from time to time, so long as no Event of Default has occurred and is continuing, elect to
exercise the SOFR Option by notifying Agent prior to 12:00 noon at least three U.S. Government Securities Business Days prior to the commencement of the proposed Interest Period (the “SOFR Deadline”). Notice of
Borrowers’ election of the SOFR Option for a permitted portion of the Revolving Loans and an Interest Period pursuant to this Section shall be made by delivery to Agent of a SOFR Notice received by Agent before the SOFR Deadline. Promptly upon
its receipt of each such SOFR Notice, Agent shall provide a notice thereof to each of the affected Lenders.
(ii) Each SOFR
Notice shall be irrevocable and binding on Borrowers. In connection with each SOFR Loan, each Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense (other than Taxes, which shall be governed by
Section 2.18) actually incurred by Agent or any Lender as a result of
(A)
the payment or required assignment of any principal of any SOFR Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default),
(B) the conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto, or
(C) the failure to borrow, convert, continue or prepay any SOFR Loan on the date specified in any SOFR Notice delivered
pursuant hereto (such losses, costs, or expenses, “Funding Losses”).
(iii) A certificate of
Agent or a Lender delivered to Borrowers setting forth in reasonable detail any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.12 shall be
conclusive absent manifest error. Borrowers shall pay such amount to Agent or the Lender, as applicable, within 30 days of the date of its receipt of such certificate. If a payment of a SOFR Loan on a day other than the last day of the applicable
Interest Period would result in a Funding Loss, Agent may, in its sole discretion at the request of Borrowers, hold the amount of such payment as Cash Collateral in support of the Obligations until the last day of such Interest Period and apply such
amounts to the payment of the applicable SOFR Loan on such last day of such Interest Period, it being agreed that Agent has no obligation to so defer the application of payments to any SOFR Loan and that, in the event that Agent does not defer such
application, Borrowers shall be obligated to pay any resulting Funding Losses.
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(iv) Unless Agent, in its sole discretion, agrees otherwise, Borrowers shall
have not more than five SOFR Loans in effect at any given time. Borrowers may only exercise the SOFR Option for proposed SOFR Loans of at least $1,000,000.
(c) Conversion; Prepayment. Borrowers may convert SOFR Loans to Base Rate Loans or prepay SOFR Loans at any time;
provided, that in the event that SOFR Loans are converted or prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any prepayment through the required application by Agent of
any payments or proceeds of Collateral in accordance with Section 2.4(b) or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the
Obligations pursuant to the terms hereof, each Borrower shall indemnify, defend, and hold Agent and the Lenders and their Participants harmless against any and all Funding Losses in accordance with
Section 2.12(b)(ii).
(d) Special Provisions Applicable to Term SOFR.
(i) Term SOFR may be adjusted by Agent with respect to any Lender on a prospective basis to take into account any additional or
increased costs (including Taxes, other than (A) Indemnified Taxes and (B) Taxes described in clauses (ii) through (iv) of the definition of Excluded Taxes or that are Other Connection Taxes, , in each case, due to changes in
applicable law occurring subsequent to the commencement of the then applicable Interest Period, or pursuant to any Change in Law or change in the reserve requirements imposed by the Board of Governors, which additional or increased costs would
increase the cost of funding or maintaining loans bearing interest at Term SOFR. In any such event, the affected Lender shall give Borrowers and Agent notice of such a determination and adjustment and Agent promptly shall transmit the notice to each
other Lender and, upon its receipt of the notice from the affected Lender, Borrowers may, by notice to such affected Lender (A) require such Lender to furnish to Borrowers a statement setting forth in reasonable detail the basis for adjusting
Term SOFR and the method for determining the amount of such adjustment, or (B) repay the SOFR Loans or Base Rate Loans determined with reference to Term SOFR, in each case, of such Lender with respect to which such adjustment is made (together
with any amounts due under Section 2.12(b)(ii)).
(ii) Subject to the
provisions set forth in Section 2.12(d)(iii) below, in the event that any change in market conditions or any Change in Law shall at any time after the date hereof, in the reasonable opinion of any
Lender, make it unlawful or impractical for such Lender to fund or maintain SOFR Loans (or Base Rate Loans determined with reference to Term SOFR) or to continue such funding or maintaining, or to determine or charge interest rates at the Term SOFR
Reference Rate, Term SOFR or SOFR, such Lender shall give notice of such changed circumstances to Agent and Borrowers and Agent promptly shall transmit the notice to each other Lender and
(y) (i) in the case of any SOFR Loans of such Lender that are outstanding, such SOFR Loans of such Lender will be deemed to
have been converted Base Rate Loans on the last day of the Interest Period of such SOFR Loans, if such Lender may lawfully continue to maintain such SOFR Loans, or immediately, if such Lender may not lawfully continue to maintain such SOFR Loans,
and thereafter interest upon the SOFR Loans of such Lender thereafter shall accrue interest at the rate then applicable to Base Rate Loans (and if applicable, without reference to the Term SOFR component thereof) and
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(ii) in the case of any such Base Rate Loans of such Lender that are
outstanding and that are determined with reference to Term SOFR, interest upon the Base Rate Loans of such Lender after the date specified in such Lender’s notice shall accrue interest at the rate then applicable to Base Rate Loans without
reference to the Term SOFR component thereof and
(z) Borrowers shall not be entitled to elect the SOFR Option and Base
Rate Loans shall not be determined with reference to the Term SOFR component thereof, in each case, until such Lender determines that it would no longer be unlawful or impractical to do so.
(iii) Benchmark Replacement Setting.
(A) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon
the occurrence of a Benchmark Transition Event, Agent and Administrative Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will
become effective at 5:00 p.m. on the fifth (5th) Business Day after Agent has posted such proposed amendment to all affected Lenders and Administrative Borrower so long as Agent has not received, by such time, written notice of objection to such
amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.12(d)(iii) will occur prior to the applicable Benchmark
Transition Start Date.
(B) Benchmark Replacement Conforming Changes. In connection with the use,
administration, adoption or implementation of a Benchmark Replacement, Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments
implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(C) Notices; Standards for Decisions and Determinations. Agent will promptly notify Administrative Borrower and
the Lenders of (1) the implementation of any Benchmark Replacement and (2) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. Agent will notify
Administrative Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.12(d)(iii)(D) and (y) the commencement of any Benchmark Unavailability Period. Any
determination, decision or election that may be made by Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.12(d)(iii), including any determination with respect to a
tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding
absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this
Section 2.12(d)(iii).
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(D) Unavailability of Tenor of Benchmark. Notwithstanding
anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement),
(1) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (I) any tenor for
such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Agent in its reasonable discretion or (II) the regulatory supervisor for the administrator of such Benchmark has
provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then Agent may modify the definition of “Interest Period” (or any similar or
analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and
(2) if a tenor that was removed pursuant to clause (1) above either (I) is subsequently displayed on a screen or
information service for a Benchmark (including a Benchmark Replacement) or (II) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then Agent may
modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(E) Benchmark Unavailability Period. Upon Administrative Borrower’s receipt of notice of the commencement
of a Benchmark Unavailability Period,
(1) Administrative Borrower may revoke any pending request for a borrowing of,
conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, Administrative Borrower will be deemed to have converted any such request into a request for a borrowing of
or conversion to Base Rate Loans and
(2) any outstanding affected SOFR Loans will be deemed to have been converted to
Base Rate Loans at the end of the applicable Interest Period. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current
Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
(e) No Requirement
of Matched Funding. Anything to the contrary contained herein notwithstanding, neither Agent, nor any Lender, nor any of their Participants, is required actually to match fund any Obligation as to which interest accrues at the Term SOFR
Reference Rate.
2.13 Capital Requirements.
(a) If, after the date hereof, Issuing Bank or any Lender determines that (i) any Change in Law regarding capital, liquidity or reserve
requirements for banks or bank holding companies, or (ii) compliance by Issuing Bank or such Lender, or their respective parent bank holding companies, with any guideline, request or directive of any Governmental Authority regarding capital
adequacy or liquidity requirements (whether or not having the force of law), has the effect of reducing the return on Issuing Bank’s, such Lender’s, or such holding companies’ capital or liquidity as a consequence of Issuing
Bank’s or such
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Lender’s commitments, Loans, participations or other obligations hereunder to a level below that which Issuing Bank, such Lender, or such holding companies could have achieved but for such
Change in Law or compliance (taking into consideration Issuing Bank’s, such Lender’s, or such holding companies’ then existing policies with respect to capital adequacy or liquidity requirements and assuming the full utilization of
such entity’s capital) by any amount deemed by Issuing Bank or such Lender to be material, then Issuing Bank or such Lender may notify Borrowers and Agent thereof. Following receipt of such notice, Borrowers agree to pay Issuing Bank or such
Lender on demand the amount of such reduction of return of capital as and when such reduction is determined, payable within 45 days after presentation by Issuing Bank or such Lender of a statement in amount and setting forth in reasonable detail
Issuing Bank’s or such Lender’s calculation thereof and the assumptions upon which such calculation was based (which statement shall be deemed true and correct absent manifest error). In determining such amount, Issuing Bank or such
Lender may use any reasonable averaging and attribution methods. Failure or delay on the part of Issuing Bank or any Lender to demand compensation pursuant to this Section shall not constitute a waiver of Issuing Bank’s or such Lender’s
right to demand such compensation; provided, that Borrowers shall not be required to compensate Issuing Bank or a Lender pursuant to this Section for any reductions in return incurred more than 180 days prior to the date that Issuing
Bank or such Lender notifies Borrowers of such Change in Law giving rise to such reductions and of such Lender’s intention to claim compensation therefor; provided, further, that if such claim arises by reason of
the Change in Law that is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(b) If Issuing Bank or any Lender requests additional or increased costs referred to in
Section 2.11(l) or Section 2.12(d)(i) or amounts under Section 2.13(a) or sends a notice under
Section 2.12(d)(ii) relative to changed circumstances or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.18 (such Issuing Bank or Lender, an “Affected Lender”), then such Affected Lender shall use reasonable efforts to promptly designate a different
one of its lending offices or to assign its rights and obligations hereunder to another of its offices or branches, if
(i)
in the reasonable judgment of such Affected Lender, such designation or assignment would eliminate or reduce amounts payable pursuant to Section 2.11(l),
Section 2.12(d)(i), Section 2.13(a) or Section 2.18, as applicable, or would eliminate the illegality or
impracticality of funding or maintaining SOFR Loans (or Base Rate Loans determined with reference to Term SOFR), and
(ii)
in the reasonable judgment of such Affected Lender, such designation or assignment would not subject it to any unreimbursed cost or expense and would not otherwise be materially disadvantageous to it.
Borrowers agree to pay all reasonable and documented out-of-pocket costs and
expenses incurred by such Affected Lender in connection with any such designation or assignment. If, after such reasonable efforts, such Affected Lender does not so designate a different one of its lending offices or assign its rights to another of
its offices or branches so as to eliminate Borrowers’ obligation to pay any future amounts to such Affected Lender pursuant to Section 2.11(l),
Section 2.12(d)(i) or Section 2.13(a), as applicable, or to enable Borrowers to obtain SOFR Loans (or Base Rate Loans determined with reference to Term
SOFR), then Borrowers (without prejudice to any amounts then due to such Affected Lender under Section 2.11(l), Section 2.12(d)(i) or
Section 2.13(a), as applicable) may, unless prior to the effective date of any such assignment the Affected Lender withdraws its request for such additional amounts under
Section 2.11(l), Section 2.12(d)(i) or Section 2.13(a), as applicable, or indicates that it is no longer
unlawful or impractical to fund or maintain SOFR Loans (or Base Rate Loans determined with reference to Term SOFR), designate a different Issuing Bank or substitute a Lender or prospective Lender, in each case, reasonably acceptable to Agent (unless
such Lender or prospective Lender is an Eligible Transferee), to purchase the Obligations
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owed to such Affected Lender and such Affected Lender’s commitments hereunder (a “Replacement Lender”), and if such Replacement Lender agrees to such purchase,
such Affected Lender shall assign to the Replacement Lender its Obligations and commitments, and upon such purchase by the Replacement Lender, which such Replacement Lender shall be deemed to be “Issuing Bank” or a
“Lender” (as the case may be) for purposes of this Agreement and such Affected Lender shall cease to be “Issuing Bank” or a “Lender” (as the case may be) for purposes of
this Agreement.
(c) Notwithstanding anything herein to the contrary, the protection of Sections 2.11(l),
2.12(d), and 2.13 shall be available to Issuing Bank and each Lender (as applicable) regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, judicial ruling, judgment,
guideline, treaty or other change or condition which shall have occurred or been imposed, so long as it shall be customary for issuing banks or lenders affected thereby to comply therewith. Notwithstanding any other provision herein, neither Issuing
Bank nor any Lender shall demand compensation pursuant to this Section 2.13 if it shall not at the time be the general policy or practice of Issuing Bank or such Lender (as the case may be) to demand
such compensation in similar circumstances under comparable provisions of other credit agreements, if any.
2.14 Incremental
Facilities.
(a) At any time during the period from and after the Closing Date, at the option of Borrowers (but subject to the
conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount
not to exceed (1) the Available Increase Amount, plus (2) solely after the use of the amount set forth in clause (1), an amount equal to Suppressed Availability determined as of the date of such increase (each such increase, an
“Increase”). Agent (at the direction of the Borrowers) shall invite one or more Lenders to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) or
any prospective Lender who, unless such prospective Lender is an Affiliate of an existing Lender, is reasonably satisfactory to Agent in its Permitted Discretion and Borrowers, to become a Lender in connection with a proposed Increase. Any Increase
pursuant to this Section 2.14 shall be in an amount of at least $10,000,000 and integral multiples of $5,000,000 in excess thereof (or such lesser amount as is required to use the remaining amount of
possible increases pursuant to this Section 2.14). In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this
Section 2.14 on more than four occasions in the aggregate for all such Increases. Additionally, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver
Commitments after the Closing Date pursuant to this Section 2.14 exceed $800,000,000.
(b)
Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith (i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other
prospective lenders) in accordance with the above clause (a) to provide the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase
Joinder”), in form and substance reasonably satisfactory to Agent in its Permitted Discretion, to which such Lenders (or prospective lenders), Borrowers, and Agent are party and (ii) no Event of Default (or, in respect of a
Limited Condition Transaction, no Event of Default under Sections 7.1, 7.4 or 7.5) shall have occurred and be continuing on the date of such Increase, nor shall either result from the effectiveness of such Increase on the date of such Increase,
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(c) The interest rate margins with respect to the Revolving Loans to be made pursuant to the
increased Revolver Commitments shall be the same as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the date of the effectiveness of the increased Revolver Commitments (the “Increase
Date”). Any Increase Joinder may, with the consent of Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary
to effectuate the provisions of this Section 2.14.
(d) Unless otherwise specifically
provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolver Commitments and Maximum
Revolver Amount pursuant to this Section 2.14.
(e) Each of the Lenders having a Revolver
Commitment prior to the Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date
(the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the
principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving
Loans and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to
such increased Revolver Commitments.
(f) The Revolving Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to
this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan
Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate
that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
(g) As of the effective date of any increase in the Revolver Commitments and the Maximum Revolver Amount occurring after the Closing Date, each
reference to the term “Availability” herein, and in any other Loan Document shall be deemed amended so that (A) the ratio of the Availability and the Maximum Revolver Amount as so increased remains the same as prior to such
increase, and (B) the reference to dollar amounts in the definition of Borrowing Base (as such amounts may be adjusted from time to time in accordance with this Section 2.14(g)) shall be
adjusted to bear the same relationship to the Maximum Revolver Amount as increased as each had borne to the Maximum Revolver Amount prior to such increase.
2.15 Joint and Several Liability of Borrowers.
(a) Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial
accommodations to be provided by the Lender Group under this Agreement, for the mutual benefit, directly and indirectly, of each Borrower and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the
Obligations.
(b) Each Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as
a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this
Section 2.15), it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each Borrower without preferences or distinction among them.
Accordingly, each Borrower hereby waives any and all suretyship defenses that would otherwise be available to such Borrower under Applicable Law.
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(c) If and to the extent that any Borrower shall fail to make any payment with respect to
any of the Obligations as and when due, whether upon maturity, acceleration, or otherwise, or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to,
or perform, such Obligations until such time as all of the Obligations are paid in full, and without the need for demand, protest, or any other notice or formality.
(d) The Obligations of each Borrower under the provisions of this Section 2.15 constitute the
absolute and unconditional, full recourse Obligations of each Borrower enforceable against each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of the provisions of this Agreement
(other than this Section 2.15(d)) or any other circumstances whatsoever.
(e) Without
limiting the generality of the foregoing and except as otherwise expressly provided in this Agreement, each Borrower hereby waives presentments, demands for performance, protests and notices, including notices of acceptance of its joint and several
liability, notice of any Revolving Loans, any portion of the Revolving Loans or any Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, notices of nonperformance, notices of
protest, notices of dishonor, notices of acceptance of this Agreement, notices of the existence, creation, or incurring of new or additional Obligations or other financial accommodations or of any demand for any payment under this Agreement, notice
of any action at any time taken or omitted by Agent or Lenders under or in respect of any of the Obligations, any right to proceed against any other Borrower or any other Person, to proceed against or exhaust any security held from any other
Borrower or any other Person, to protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Borrower, any other Person, or any collateral, to pursue any
other remedy in any member of the Lender Group’s or any Bank Product Provider’s power whatsoever, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by Applicable Law, all demands, notices and
other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement), any right to assert against any member of the Lender Group or any Bank Product Provider, any defense (legal or equitable), set-off, counterclaim, or claim which each Borrower may now or at any time hereafter have against any other Borrower or any other party liable to any member of the Lender Group or any Bank Product Provider, any
defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Obligations or any
security therefor, and any right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group or any Bank Product Provider including any defense based upon an impairment or elimination of
such Borrower’s rights of subrogation, reimbursement, contribution, or indemnity of such Borrower against any other Borrower. Without limiting the generality of the foregoing, each Borrower hereby assents to, and waives notice of, any
extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Agent or
Lenders at any time or times in respect of any default by any Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Agent or Lenders in respect of any
of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without
limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of any Agent or Lender with respect to the failure by any Borrower to comply with any of its respective Obligations,
including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with Applicable Laws or regulations thereunder, which might, but for the provisions of this
Section 2.15 afford grounds for terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this
Section 2.15, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each Borrower under this
Section 2.15 shall not be discharged except by performance and
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then only to the extent of such performance. The Obligations of each Borrower under this Section 2.15 shall not be diminished or rendered
unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other Borrower or any Agent or Lender. Each of the Borrowers waives, to the fullest extent permitted by law, the
benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Borrower or other circumstance which operates to toll any statute of limitations as to any Borrower shall operate to toll the
statute of limitations as to each of the Borrowers. Each of the Borrowers waives any defense based on or arising out of any defense of any Borrower or any other Person, other than payment of the Obligations to the extent of such payment, based on or
arising out of the disability of any Borrower or any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Borrower other than
payment of the Obligations to the extent of such payment. Agent may, at the election of the Required Lenders, foreclose upon any Collateral held by Agent by one or more judicial or nonjudicial sales or other dispositions, whether or not every aspect
of any such sale is commercially reasonable or otherwise fails to comply with Applicable Law or may exercise any other right or remedy Agent, any other member of the Lender Group, or any Bank Product Provider may have against any Borrower or any
other Person, or any security, in each case, without affecting or impairing in any way the liability of any of the Borrowers hereunder except to the extent the Obligations have been paid.
(f) Each Borrower represents and warrants to Agent and Lenders that such Borrower is currently informed of the financial condition of Borrowers
and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants to Agent and Lenders that such Borrower has read and understands the
terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of Borrowers’ financial condition and of all other circumstances which bear upon the risk of nonpayment or
nonperformance of the Obligations.
(g) The provisions of this Section 2.15 are made for the
benefit of Agent, each member of the Lender Group, each Bank Product Provider, and their respective successors and assigns, and may be enforced by it or them from time to time against any or all Borrowers as often as occasion therefor may arise and
without requirement on the part of Agent, any member of the Lender Group, any Bank Product Provider, or any of their successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any Borrower or
to exhaust any remedies available to it or them against any Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this
Section 2.15 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of
the Obligations, is rescinded or must otherwise be restored or returned by Agent or any Lender upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this
Section 2.15 will forthwith be reinstated in effect, as though such payment had not been made.
(h) Each Borrower hereby agrees that it will not enforce any of its rights that arise from the existence, payment, performance or enforcement
of the provisions of this Section 2.15, including rights of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Agent, any
other member of the Lender Group, or any Bank Product Provider against any Borrower, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Borrower,
directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until such time as all of the
Obligations have been paid in full in cash. . Any claim which any Borrower may have against any other Borrower with respect to any payments to any Agent or any member of the Lender Group hereunder or under any of the Bank Product Agreements are
hereby
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expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the
Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or
involuntary, all such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any other Borrower therefor. If any amount shall be paid to any
Borrower in violation of the immediately preceding sentence, such amount shall be held in trust for the benefit of Agent, for the benefit of the Lender Group and the Bank Product Providers, and shall forthwith be paid to Agent to be credited and
applied to the Obligations and all other amounts payable under this Agreement, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other amounts payable under this
Agreement thereafter arising.
(i) Each Borrower hereby agrees that after the occurrence and during the continuance of an Event of Default,
such Borrower will not demand, sue for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such
Borrower shall collect, enforce or receive any amounts in respect of such indebtedness after the occurrence and during the continuance of any Event of Default, such amounts shall be collected, enforced and received by such Borrower as trustee for
Agent, and such Borrower shall deliver any such amounts to Agent for application to the Obligations in accordance with Section 2.4(b).
2.16 Extensions of Revolver Commitments.
(a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension
Offer”) made from time to time by Administrative Borrower to all Lenders with Revolver Commitments with a like maturity date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of such Revolver
Commitments with a like maturity date) and on the same terms to each such Lender, Borrowers are hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend
the maturity date of each such Lender’s Revolver Commitments and otherwise modify the terms of Revolver Commitments pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate margin, interest rate floor, all-in yield pricing or fees payable in respect of Revolver Commitments (and related outstandings)) (each, an “Extension,” and each portion of Revolver Commitments as so extended, as well
as the original Revolver Commitments (not so extended), being a “tranche”; any Extended Revolver Commitments shall constitute a separate tranche of Revolver Commitments from the tranche of Revolver Commitments from which they were
converted), in each case, so long as each of the following terms is satisfied:
(i) no Event of Default shall have occurred
and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders,
(ii)
except as to interest rate margin, interest rate floor, all-in yield pricing, fees, AHYDO Payments, optional redemption or prepayment terms, final maturity, and after the final maturity date of the other
existing Revolver Commitments, any other covenants and provisions (which shall be determined by Borrowers and the Extending Revolver Lenders and set forth in the relevant Extension Offer), the Revolver Commitment of any Lender (an
“Extending Revolver Lender”) extended pursuant to an Extension (an “Extended Revolver Commitment”), and the related outstandings, shall be a Revolver Commitment (or related outstandings, as the
case may be) with such other terms substantially identical to, or not more favorable to the Extending Revolver Lenders than those applicable to the Revolver Commitments not subject to such Extension Offer
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(except for covenants or other provisions applicable only to periods after the applicable Maturity Date of the Loans immediately prior to such Extension and provided that any financial
maintenance covenant may be added for the benefit of any Extending Revolver Lender for periods prior to such applicable Maturity Date if such covenant is also added for the benefit of the other Lenders); provided, that
(A) the borrowing and repayment (except for
(1) payments of interest and fees at different rates on Extended Revolver Commitments (and related outstandings),
(2) repayments required upon the maturity date of the non-extending Revolver
Commitments, and
(3) repayment made in connection with a permanent repayment and termination of commitments) of Revolving
Loans with respect to Extended Revolver Commitments after the applicable Extension date shall be made on a pro rata basis with all other Revolver Commitments,
(B) all Swing Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolver Commitments in
accordance with their percentage of the Revolver Commitments subject to the express terms herein,
(C) the permanent
repayment of Revolving Loans with respect to, and termination of, Extended Revolver Commitments after the applicable Extension date shall be made on a pro rata basis with all other Revolver Commitments, except that Borrowers shall be permitted to
permanently repay and terminate commitments of any tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche,
(D) assignments and participations of Extended Revolver Commitments and extended Revolving Loans shall be governed by the same
assignment and participation provisions applicable to Revolver Commitments and Revolving Loans, and
(E) at no time shall
there be Revolver Commitments hereunder (including Extended Revolver Commitments and any original Revolver Commitments) which have more than three different maturity dates,
(iii) to the extent that the interest rate margin, interest rate floor, all-in yield
pricing or fees are increased for the benefit of any Extending Revolver Lender that is payable prior to the payment in full of the Obligations of Lenders that are not Extending Revolver Lenders under such Extension Offer, such non-extending Lenders have the right to receive the aggregate value of such increase from and after the date that such interest rate margin, interest rate floor, all-in yield
pricing or fees (as applicable) accrues in favor of or is payable to any such Extending Revolver Lenders,
(iv) if the
aggregate principal amount of Revolver Commitments in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Revolver Commitments offered to be extended by Borrowers pursuant
to such Extension Offer, then the Revolver Commitments of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings or commitments of record) with respect to which
such Lenders have accepted such Extension Offer,
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(v) Borrowers shall have delivered to Agent such legal opinions,
certificates, resolutions and other documents as Agent shall reasonably request with respect to the transactions contemplated by this Section 2.16,
(vi) all documentation in respect of such Extension shall be consistent with the foregoing,
(vii) the Revolver Commitments extended pursuant to any Extension Offer shall be in a minimum amount of $10,000,000 and
increments of $1,000,000 in excess thereof, and
(viii) any Extension made pursuant to any Extension Offer must be
consummated within 30 days of such Extension Offer.
(b) With respect to all Extensions consummated by Borrowers pursuant to this
Section 2.16, such Extension shall not constitute voluntary or mandatory payments or prepayments for purposes of this Agreement. Agent and the Lenders hereby consent to the Extensions and the other
transactions contemplated by this Section 2.16 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Revolver Commitments on such terms as may be
set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this
Section 2.16.
(c) No consent of any Lender or Agent shall be required to effectuate any
Extension, other than (i) the consent of each Lender agreeing to such Extension with respect to its Revolver Commitments (or a portion thereof), and (ii) with respect to any Extension of the Revolver Commitments, the consent of Issuing
Bank or Swing Lender to the extent the Letter of Credit facility or Swing Loan facility is to be extended, which consent shall not be unreasonably withheld, delayed or conditioned. All Extended Revolver Commitments and all obligations in respect
thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. The Lenders hereby
irrevocably authorize Agent to enter into amendments to this Agreement and the other Loan Documents with the Loan Parties as may be necessary or appropriate in order to establish new tranches or sub-tranches
in respect of Revolver Commitments so extended, that reflect the terms and conditions of any such Extension and such technical amendments as may be necessary or appropriate in the reasonable opinion of Agent and Administrative Borrower in connection
with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.16. All such amendments entered into with the
Loan Parties by Agent hereunder shall be binding and conclusive on the Lenders. In addition, if so provided in such amendment and with the consent of Issuing Bank, participations in Letters of Credit expiring on or after the Maturity Date in respect
of the Revolving Loans shall be re-allocated from Lenders holding Revolver Commitments to Lenders holding Extended Revolver Commitments in accordance with the terms of such amendment;
provided, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Extended Revolver Commitments, be deemed to be participation interests in respect of such Extended Revolver Commitments and
the terms of such participation interests (including the fees applicable thereto) shall be adjusted accordingly. Without limiting the foregoing, in connection with any Extensions the respective Loan Parties shall (at their expense) amend (and Agent
is hereby directed to amend) any Security Document that has a maturity date prior to the then Latest Maturity Date so that such maturity date is extended to the then Latest Maturity Date hereunder (or such later date as may be reasonably advised by
local counsel to Agent). On and after the maturity date with respect to the Revolver
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Commitment and Revolving Loans of any Lender that has not extended its Revolver Commitments and Revolving Loans beyond such maturity date pursuant to this
Section 2.16, the Letter of Credit Exposure of such Revolving Lender shall be reallocated to Revolving Lenders that have extended their Revolving Loans and Revolver Commitments beyond such maturity date
pro rata in accordance with the Revolver Commitments and Revolving Loans of all Revolving Lenders that have so extended their Revolver Commitments and Revolving Loans. Notwithstanding the provisions of this
Section 2.16, Agent shall have the right to resign on the Maturity Date in accordance with Section 14.9.
(d) In connection with any Extension, Administrative Borrower shall provide Agent at least ten days (or such shorter period as may be agreed by
Agent) prior written notice thereof, and shall agree to such procedures (including rendering timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any,
as may be established by, or acceptable to, Agent, in each case acting reasonably to accomplish the purposes of this Section 2.16.
2.17 Agent’s Clawback.
(a) Funding by Lenders; Presumption by Agent. Unless the Agent shall have received notice from a Lender (i) in the case of Base
Rate Loans, not later than 12:00 noon on the date of any proposed borrowing and (ii) otherwise, prior to the proposed date of any borrowing that such Lender will not make available to the Agent such Lender’s share of such borrowing, the
Agent may assume that such Lender has made such share available on such date in accordance with Section 2.3 and may, in reliance upon such assumption, make available to the Borrowers a corresponding
amount. In such event, if a Lender has not in fact made its share of the applicable borrowing available to the Agent, then the applicable Lender and the Borrowers severally agree to pay to the Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made available to the Borrowers to but excluding the date of payment to the Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate and
(B) in the case of a payment to be made by the Borrowers, the interest rate applicable to Base Rate Loans. If the Borrowers and such Lender shall pay such interest to the Agent for the same or an overlapping period, the Agent shall promptly
remit to the Borrowers the amount of such interest paid by the Borrowers for such period. If such Lender pays its share of the applicable borrowing to the Agent, then the amount so paid shall constitute such Lender’s Loan included in such
borrowing. Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have against a Lender that shall have failed to make such payment to the Agent.
(b) Payments by the Borrowers; Presumptions by Agent. Unless the Agent shall have received notice from the Borrowers prior to the date
on which any payment is due to the Agent for the account of the Lenders hereunder that the Borrowers will not make such payment, the Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders severally agrees to repay to the Agent forthwith on demand the amount so distributed to such
Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Agent, at the Overnight Rate.
(c) Nature of Obligations of Lenders Regarding Loans. The obligations of the Lenders under this Agreement to make the Loans are several
and are not joint or joint and several. The failure of any Lender to make available its Pro Rata Share of any Loans requested by the Borrowers shall not relieve it or any other Lender of its obligation, if any, hereunder to make its Pro Rata Share
of such Loans available on the borrowing date, but no Lender shall be responsible for the failure of any other Lender to make its Pro Rata Share of such Loans available on the borrowing date.
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2.18 Taxes.
(a) Defined Terms. For purposes of this Section 2.18, the term “Applicable Law” includes FATCA.
(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall
be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from
any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance
with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that, after such deduction or withholding of Indemnified Taxes has been made (including such deductions
and withholdings of Indemnified Taxes applicable to additional sums payable under this Section 2.18(b)), the applicable Recipient receives an amount equal to the sum it would have received had no such
deduction or withholding been made.
(c) Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to the
relevant Governmental Authority in accordance with Applicable Law, or at the option of the Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by the Loan Parties. The Loan Parties shall jointly and severally indemnify each Recipient, within ten
(10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.18(d)) payable or paid by such
Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable out-of-pocket expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that no indemnification payment shall be due under this
Section 2.18(d) to the extent such payment is duplicative of any payment made by a Loan Party under any other provision of this Agreement (including
Section 2.18(b) or (c)) or under any other Loan Document. A certificate as to the amount of such payment or liability (setting forth in reasonable detail the basis and calculation
of the amount of such payment or liability) delivered to the Borrower by a Recipient (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Recipient, shall be conclusive absent manifest error. Notwithstanding anything
herein to the contrary, no Recipient shall be indemnified for any Indemnified Taxes hereunder unless such Recipient shall make written demand on the Borrower for such reimbursement no later than nine (9) months after the earlier of (i) the
date on which the relevant Governmental Authority makes written demand upon such Recipient or its affiliates for payment of such Indemnified Taxes, and (ii) the date on which such Recipient or its affiliates have made payment of such
Indemnified Taxes.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Agent, within ten (10) days
after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of the Loan
Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.1(i) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes
attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and
apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this paragraph (e). The agreements in paragraph
(e) shall survive the resignation and/or replacement of the Agent.
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(f) Evidence of Payments. As soon as practicable after any payment of Taxes by
any Loan Party to a Governmental Authority pursuant to this Section 2.18, such Loan Party shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.
(g) Status of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any
Loan Document shall deliver to the Borrowers and the Agent, at the time or times reasonably requested by the Borrowers or the Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Agent as will permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably
requested by the Borrowers or the Agent as will enable the Borrowers or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the
preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.18(g)(ii)(A), (ii)(B) and
(ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal
or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing:
(A) any Lender that is a U.S. Person shall deliver to the Borrowers and the Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), property completed and executed valid copies of IRS Form W-9 (or any
applicable successor form) certifying that such Lender is exempt from United States federal backup withholding Tax;
(B)
any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party
(x) with respect to payments of interest under any Loan Document, properly completed and executed valid copies of IRS Form W-8BEN-E (or any applicable successor
form) establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS
Form W-8BEN-E (or any applicable successor form) establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the “business
profits” or “other income” article of such tax treaty;
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(2) properly completed and executed valid copies of IRS Form W-8ECI (or any applicable successor form);
(3) in the case of a Foreign Lender claiming
the benefits of the exemption for portfolio interest under Section 881(c) of the IRC, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender
is not a “bank” within the meaning of Section 881(c)(3)(A) of the IRC, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the IRC, or a “controlled foreign
corporation” described in Section 881(c)(3)(C) of the IRC (a “U.S. Tax Compliance Certificate”) and (y) properly completed and executed valid copies of IRS Form W-8BEN-E (or IRS Form W-8BEN, as applicable) (or any applicable successor form); or
(4) to the extent a Foreign Lender is not the beneficial owner, properly completed and executed valid copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or IRS Form W-8BEN, as applicable) (or any applicable successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided, that if the Foreign Lender is a partnership
and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender
shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Agent), properly completed and executed valid copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United
States federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrowers or the Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to United States federal withholding Tax imposed by
FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the IRC, as applicable), such Lender shall deliver to the Borrower and the Agent at the
time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the IRC) and such additional
documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrowers and the Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations
under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
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(iii) On or before the date that Wells Fargo (and any successor or
replacement Agent) becomes the Agent hereunder, it shall deliver to the Borrowers two properly completed and executed valid copies of either (i) IRS Form W-9 (or any successor form) or (ii) a U.S.
branch withholding certificate on IRS Form W-8IMY (or any successor form) evidencing its agreement with the Borrowers to be treated as a U.S. Person (with respect to amounts received on account of any Lender)
and IRS Form W-8ECI (or any successor form) (with respect to amounts received on its own account), with the effect that, in any case, the Borrowers will be entitled to make payments hereunder to the Agent
without withholding or deduction on account of U.S. federal withholding Tax.
Each Lender and Agent agrees that if any form or
certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do so.
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund
(including a credit in lieu of refund) of any Taxes as to which it has been indemnified pursuant to this Section 2.18 (including by the payment of additional amounts pursuant to this
Section 2.18), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this
Section 2.18 with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses
(including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to
such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to
such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would
place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other
information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i) Specified Foreign
Entity. Each Lender (and, by purchasing a participation, each Participant) represents that, to its knowledge, it is not (as of the date that it becomes a Lender or Participant, as applicable) a Specified Foreign Entity. Notwithstanding anything
to the contrary under this Agreement, replacement of the applicable Lenders (or, with respect to any Participants, such Participant’s Originating Lenders) pursuant to Section 13.3 shall be the
Borrower’s sole remedy in connection with any breach or misrepresentation by a Lender or Participant under the first sentence of this Section 2.18(i). If any Lender or Participant obtains
knowledge that it was or has become a Specified Foreign Entity, such Lender or Participant shall promptly notify the Borrower.
(j)
Survival. Each party’s obligations under this Section 2.18 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
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3. CONDITIONS.
3.1 Conditions Precedent to the Initial Loans. The obligation of each Lender to make an initial Loan provided for
hereunder and each Issuing Bank to make the initial extensions of credit provided for hereunder (including, without limitation, the deemed issuance of the Existing Letters of Credit hereunder as provided in
Section 2.11(d)) is subject to the fulfillment, to the satisfaction of Agent, each Lender and each Issuing Bank, of each of the conditions precedent set forth on Schedule 3.1 to this
Agreement (the making of such initial extensions of credit by a Lender or Issuing Bank being conclusively deemed to be its satisfaction or waiver of the conditions precedent).
3.2 Conditions Precedent to all Extensions of Credit. The obligation of the Lender Group (or any member thereof) to make
any Revolving Loans hereunder (or to extend any other credit hereunder) at any time shall be subject to the following conditions precedent:
(a) the representations and warranties of Holdings, each Loan Party or its Restricted Subsidiaries and contained in this Agreement or in the
other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof)
on and as of the date of such extension of credit, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true
and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date);
(b) no Default or Event of Default shall have occurred and be continuing on the date of such extension of credit, nor shall either result from
the making thereof; and
(c) a Borrowing request or a Letter of Credit request, as applicable, shall have been delivered in accordance with
Section 2.3(a) or Section 2.11(a), respectively.
3.3 Maturity. The Commitments shall continue in full force and effect for a term ending on the Latest Maturity Date
(unless terminated earlier in accordance with the terms hereof).
3.4 Effect of Maturity. On the Latest Maturity Date
the Commitments shall automatically be terminated and all of the Obligations (other than Bank Product Obligations) immediately shall become due and payable without notice or demand and Borrowers shall be required to repay all of the Obligations in
full, subject to and in accordance with Section 1.4. No termination of the obligations of the Lender Group (other than payment in full of the Obligations) shall relieve or discharge any Loan Party of
its duties, obligations, or covenants hereunder or under any other Loan Document and Agent’s Liens in the Collateral shall continue to secure the Obligations and shall remain in effect until all Obligations have been paid in full. When all of
the Obligations have been paid in full, Agent will, at Borrowers’ sole expense, execute and deliver any termination statements, lien releases, discharges of security interests, and other similar discharge or release documents (and, if
applicable, in recordable form) as are reasonably necessary to release, as of record, Agent’s Liens and all notices of security interests and liens previously filed by Agent with respect to the Obligations.
3.5 Early Termination by Borrowers. Borrowers have the option, at any time upon three (3) Business Days prior written
notice to Agent (or such shorter period as Agent may agree), to terminate this Agreement and terminate the Commitments hereunder by repaying to Agent all of the Obligations (other than indemnities and contingent obligations for which no claim in
writing has been made) in full and terminate the Commitments. The foregoing notwithstanding,
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(a) Borrowers may rescind or extend termination notices relative to proposed payments in
full of the Obligations (i) with the proceeds of third party Indebtedness if the closing for such issuance or incurrence does not happen on or before the date of the proposed termination, (ii) upon the consummation of a transaction that
would result in a Change of Control if the closing of such transaction does not happen on or before the date of the proposed termination (and in each case, a new notice shall be required to be sent in connection with any subsequent termination) or
(iii) any other transaction, and
(b) Borrowers may extend the date of termination at any time with the consent of Agent (which
consent shall not be unreasonably withheld or delayed).
3.6 Conditions Subsequent. The obligation of the Lender Group
(or any member thereof) to continue to make Revolving Loans (or otherwise extend credit hereunder) is subject to the fulfillment, on or before the date applicable thereto, of the conditions subsequent set forth on Schedule 3.6 (the
failure by Borrowers or their Subsidiaries to so perform or cause to be performed such conditions subsequent as and when required by the terms thereof (unless such date is extended or such condition subsequent is waived, in either case, in writing,
by Agent, which Agent may do without obtaining the consent of the other members of the Lender Group), shall constitute an Event of Default). All conditions precedent, covenants and representations and warranties contained in this Agreement and the
other Loan Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described on Schedule 3.6 within the time periods required by this
Section 3.6, rather than as elsewhere provided in the Loan Documents).
4. REPRESENTATIONS AND
WARRANTIES.
In order to induce the Lender Group to enter into this Agreement, Holdings and each Loan Party, as applicable, makes
the following representations and warranties to the Lender Group which shall be true, correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof), as of the Closing Date, and shall be true, correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof), as of the date of the making of each Revolving Loan and issuance, extension or amendment to increase the face amount of a Letter of Credit made thereafter, as
though made on and as of the date of such Revolving Loan or such issuance, extension or amendment to increase the face amount (except to the extent that such representations and warranties relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text
thereof) as of such earlier date), and such representations and warranties shall survive the execution and delivery of this Agreement:
4.1 Due Organization and Qualification; Subsidiaries.
(a) Holdings, each Loan Party and each Restricted Subsidiary thereof (i) is duly organized and validly existing under the laws of the
jurisdiction of its organization, (ii) is in good standing and/or qualified to do business in any state where the failure to be so qualified and/or in good standing would reasonably be expected to result in a Material Adverse Effect and
(iii) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted (except where the failure to do so could not reasonably be expected to result in a Material
Adverse Effect), to enter into the Loan Documents to which it is a party and to carry out the transactions contemplated thereby.
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(b) As of the date hereof, set forth on Schedule 4.1(b), is a complete
and accurate description of the authorized Equity Interests of each Loan Party, by class, and, as of the Closing Date, a description of the number of shares of each such class that are issued and outstanding.
(c) As of the date hereof, set forth on Schedule 4.1(c) is a complete and accurate list of the Loan Parties’ direct and
indirect Subsidiaries, showing: (i) the number of shares of each class of common and preferred Equity Interests authorized for each Restricted Subsidiary and (ii) the number and the percentage of the outstanding shares of each such class
owned directly or indirectly by each Restricted Subsidiary. As of the date hereof, such Schedule 4.1(c) identifies each Subsidiary that is an Excluded Subsidiary, a Restricted Subsidiary, and Intermediation Subsidiary and an
Unrestricted Subsidiary. All of the outstanding Equity Interests of each such Restricted Subsidiary that are owned by a Loan Party has been validly issued and is fully paid and non-assessable.
4.2 Due Authorization; No Conflict.
(a) As to each Loan Party and Holdings, the execution, delivery, and performance by such Loan Party or Holdings of the Loan Documents to which
it is a party have been duly authorized by all necessary action on the part of such Loan Party or Holdings, as applicable.
(b) As to each
Loan Party and Holdings, the execution, delivery, and performance by such Loan Party or Holdings of the Loan Documents to which it is a party do not and will not (i) violate (A) any provision of federal, state, provincial or local law or
regulation applicable to Holdings, any Loan Party or its Restricted Subsidiaries where such violation would reasonably be expected to have a Material Adverse Effect, (B) the Governing Documents of any Loan Party or Holdings, or (C) any
order, judgment, or decree of any court or other Governmental Authority binding on any Loan Party or Holdings where such violation would reasonably be expected to have a Material Adverse Effect, (ii) conflict with, result in a breach of, or
constitute (with due notice or lapse of time or both) a default under any Intermediation Facility where any such conflict, breach or default would reasonably be expected to have a Material Adverse Effect, (iii) result in or require the creation
or imposition of any Lien of any nature whatsoever upon any assets of any Loan Party, other than Permitted Liens, or (iv) require any approval of any holder of Equity Interests of a Loan Party or any approval or consent of any Person under any
Intermediation Facility, other than consents or approvals that have been obtained and that are still in force and effect.
(c) No Default
or Event of Default has occurred and is continuing.
4.3 Governmental Consents. The execution, delivery, and
performance by each Loan Party and Holdings of the Loan Documents to which such Loan Party or Holdings is a party and the consummation of the transactions contemplated by the Loan Documents do not and will not require any registration with, consent,
or approval of, or notice to, or other action with or by, any Governmental Authority, other than registrations, consents, approvals, notices, or other actions that have been obtained and that are still in force and effect and immaterial
registrations, consents, approvals, notices or other actions the failure to obtain which could not reasonably be expected to be adverse to the interests of any member of the Lender Group, and except for filings and recordings with respect to the
Collateral to be made, or otherwise delivered to the Agent for filing or recordation, as of the Closing Date and except for filings and/or disclosures as may be required by applicable federal or provincial securities laws and/or the requirements of
any national securities exchange or any similar organization.
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4.4 Binding Obligations; Perfected Liens.
(a) Each Loan Document has been duly executed and delivered by each Loan Party and Holdings that is a party thereto and is the legally valid
and binding obligation of such Loan Party or Holdings, enforceable against such Loan Party or Holdings in accordance with its respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally.
(b) The Agent’s Liens are, to
the extent required by the Guaranty and Security Agreement on the date hereof, validly created, perfected (other than (i) money, (ii) letter-of-credit rights (other
than supporting obligations), (iii) commercial tort claims (other than those that, by the terms of the Guaranty and Security Agreement, are required to be perfected), and (iv) any Deposit Accounts and Securities Accounts not subject to a
Control Agreement as permitted by the Guaranty and Security Agreement and this Agreement, and subject only to possession of Collateral for which the UCC requires possession to perfect a security interest and the filing of financing statements in the
appropriate filing offices), and first priority Liens, subject only to Permitted Liens (other than pursuant to clauses (b), (u), (v), (w) and (z) of such definition).
4.5 Title to Assets; No Encumbrances. Each of the Loan Parties and its Restricted Subsidiaries has (a) good,
sufficient and legal title to (in the case of fee interests in Real Property), (b) good and valid leasehold interests in (in the case of leasehold interests in real or personal property), and (c) good and marketable title to (in the case of all
other personal property), all of their respective assets reflected in their most recent financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of since the date
of such financial statements to the extent permitted hereby and except for such defects in title or interests as could not, individually or in the aggregate, reasonably be expected to cause a Material Adverse Effect. All of such assets are free and
clear of Liens except for Permitted Liens.
4.6 Litigation.
(a) There are no actions, suits, or proceedings pending or, to the knowledge of any Loan Party, after due inquiry, threatened in writing
against Holdings, a Loan Party or any of a Loan Party’s Restricted Subsidiaries that either individually or in the aggregate would reasonably be expected to result in a Material Adverse Effect.
4.7 Compliance with Laws.
(a) None of any Loan Party and any of its Restricted Subsidiaries
(i) is in violation of any Applicable Laws (including Environmental Laws) that, individually or in the aggregate, would
reasonably be expected to result in a Material Adverse Effect, or
(ii) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that,
individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.
(b) No Inventory has been produced
in any material violation of the FLSA.
4.8 Financial Statements; No Material Adverse Effect. All historical financial
statements relating to Loan Parties and their Restricted Subsidiaries that have been delivered by the Borrowers to the Agent have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of footnotes
and being subject to changes resulting from audit and year-end audit adjustments) and present fairly in all material respects, the Loan Parties’ and their Restricted Subsidiaries’ consolidated
financial condition as of the date thereof and results of operations for the period then ended. Since December 31, 2025, no event, circumstance, or change has occurred that has or would reasonably be expected to result in a Material Adverse
Effect with respect to the Loan Parties and their Restricted Subsidiaries.
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4.9 Solvency.
(a) The Loan Parties and their Restricted Subsidiaries, taken as a whole, are Solvent.
(b) No transfer of property is being made by any Loan Party and no obligation is being incurred by any Loan Party in connection with the
transactions contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of such Loan Party.
4.10 Employee Benefits. Except as set forth on Schedule 4.10 or as, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect:
(a) No Loan Party, none of their Subsidiaries, nor any of their ERISA
Affiliates maintains or contributes to any Pension Plan.
(b) Each Employee Benefit Plan is, and has been, maintained in substantial
compliance with ERISA, the IRC, all Applicable Laws and the terms of each such Employee Benefit Plan.
(c) Each Employee Benefit Plan that
is intended to qualify under Section 401(a) of the IRC has received a favorable determination letter from the Internal Revenue Service or an application for such letter is currently being processed by the Internal Revenue Service. To the best
knowledge of each Loan Party, each Loan Party’s Subsidiaries and the ERISA Affiliates after due inquiry, nothing has occurred which would prevent, or cause the loss of, such qualification.
(d) No liability to the PBGC (other than for the payment of current premiums which are not past due) by any Loan Party, any Subsidiary thereof
or ERISA Affiliate has been incurred or is expected by any Loan Party, any Subsidiary thereof or ERISA Affiliate to be incurred with respect to any Pension Plan.
(e) No Notification Event exists or has occurred in the past six (6) years.
(f) No Loan Party, any Subsidiary thereof or ERISA Affiliate has provided any security under Section 436 of the IRC.
4.11 Environmental Condition. Except as set forth on Schedule 4.11 or as, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, (a) to each Loan Party’s knowledge, no Loan Party’s nor any of its Restricted Subsidiaries’ properties or assets has ever been used by a Loan Party, its
Restricted Subsidiaries, or by any previous owner or operator for the disposal of, or to produce, store, handle, treat, Release, or transport, any Hazardous Materials, where such disposal, production, storage, handling, treatment, Release or
transport was in violation of any applicable Environmental Law, (b) to each Loan Party’s knowledge, no Loan Party’s nor any of its Restricted Subsidiaries’ properties or assets has ever been designated or identified in any
manner pursuant to any Environmental Law as a Hazardous Materials disposal site, (c) no Loan Party nor any of its Restricted Subsidiaries has received written notice that a Lien arising under any Environmental Law has attached to any revenues
or to any Real Property owned or operated by a Loan Party or its Restricted Subsidiaries and (d) no Loan Party nor any of its Restricted Subsidiaries nor any of their respective facilities or operations is subject to any outstanding written
order, consent decree, or settlement agreement with any Person relating
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to any Environmental Law or Environmental Liability. Each of the Loan Party and its Restricted Subsidiaries has obtained and is in compliance with the terms and conditions of all Environmental
Permits required for the ownership and operation of their respective properties or assets, and each such Environmental Permit is in full force and effect, in each case, except where failure to do so could not reasonably be expected to have a
Material Adverse Effect.
4.12 Complete Disclosure. All material factual written information taken as a whole (other
than forward-looking information and projections and information of a general economic nature and general information about Loan Parties’ industry) furnished by or on behalf of (at their direction) Holdings, a Loan Party or any of a Loan
Party’s Restricted Subsidiaries in writing to Agent or any Lender (including all information contained in the Schedules hereto or in the other Loan Documents) for purposes of or in connection with this Agreement or the other Loan Documents (as
modified or supplemented by other information so furnished on or before the date as of which this representation is made or deemed made) is, true and accurate, in all material respects, on the date as of which such information is dated or certified
and not incomplete by omitting to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided. The Projections
delivered to Agent on April 16, 2026, represent, and as of the date on which any other Projections are delivered to Agent, such additional Projections represent, the Borrowers’ good faith estimate, on the date such Projections are
delivered, of Loan Parties’ and their Restricted Subsidiaries’ future performance for the periods covered thereby based upon assumptions believed by the Borrowers to be reasonable at the time of the delivery thereof to Agent (it being
understood that such Projections are subject to significant uncertainties and contingencies, many of which are beyond the control of Loan Parties and their Restricted Subsidiaries, and no assurances can be given that such Projections will be
realized, and although reflecting Borrowers’ good faith estimate, projections or forecasts based on methods and assumptions which the Borrowers believed to be reasonable at the time such Projections were prepared, are not to be viewed as
facts, and that actual results during the period or periods covered by the Projections may differ materially from projected or estimated results). As of the Closing Date, the information included in the Beneficial Ownership Certification is true and
correct in all respects.
4.13 Patriot Act. To the extent applicable, Holdings and each Loan Party is in compliance,
in all material respects, with the (a) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling
legislation or executive order relating thereto and (b) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001) (the “Patriot Act”).
4.14 Payment of Taxes. Except as otherwise permitted under Section 5.5, all
Tax returns and reports of each Loan Party and its Restricted Subsidiaries required to be filed by any of them have been timely filed, and all Taxes shown on such Tax returns to be due and payable, have been paid when due and payable, except, in
either case, where (a) the Taxes are the subject of a Permitted Protest or (b) the failure to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
4.15 Margin Stock. No Loan Party nor any of its Restricted Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the Loans made to the Borrowers or the Letters of Credit issued for the account of any Borrower or any Restricted
Subsidiary will be used to purchase or carry any Margin Stock in any manner that, or to extend credit to others for the purpose of purchasing or carrying any Margin Stock, or for any purpose that, violates the provisions of Regulation T, U, or X of
the Board of Governors.
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4.16 Governmental Regulation. None of Holdings, any Loan Party and any
of its Restricted Subsidiaries is subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other federal, state or provincial statute or regulation which may limit its ability to incur Indebtedness. None
of Holdings, any Loan Party and any of its Restricted Subsidiaries is a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a
“registered investment company” as such terms are defined in the Investment Company Act of 1940.
4.17 OFAC;
Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws. None of Holdings, any Loan Party and any of its Subsidiaries is in violation of any Sanctions. None of Holdings, any Loan Party and any of its Subsidiaries, nor, to the knowledge
of Holdings or such Loan Party, any director, officer, employee, agent, Affiliate or Permitted Joint Venture thereof (a) is a Sanctioned Person or a Sanctioned Entity, (b) has any assets located in Sanctioned Entities, or (c) derives
revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. Holdings has implemented and maintains in effect policies and procedures designed to ensure compliance with all Sanctions, Anti-Corruption Laws and
Anti-Money Laundering Laws by Holdings, the Loan Parties and the Par Borrower’s Subsidiaries. Each of Holdings, the Loan Parties and Par Borrower’s Subsidiaries, and to the knowledge of Holdings and each such Loan Party, each director,
officer, employee, agent, Affiliate and Permitted Joint Venture thereof, is in compliance with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws in all material respects. No proceeds of any Loan made or any Letters of Credit issued
hereunder will be used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, or otherwise used in any manner that would result in a violation of any Sanction,
Anti-Corruption Law or Anti-Money Laundering Law by Holdings, Par Borrower or any of Par Borrower’s Subsidiaries.
4.18
Employee and Labor Matters. As of the date hereof, there is (i) no unfair labor practice complaint pending or, to the knowledge of any Loan Party, threatened in writing against the Par Borrower or its Restricted Subsidiaries
before any Governmental Authority and no grievance or arbitration proceeding pending or, to the knowledge of any Loan Party, threatened in writing against the Par Borrower or its Restricted Subsidiaries which arises out of or under any collective
bargaining agreement and that would reasonably be expected to result in a Material Adverse Effect and (ii) no strike, labor dispute, slowdown, stoppage or similar action or grievance pending or threatened in writing against the Par Borrower or
its Restricted Subsidiaries that would reasonably be expected to result in a Material Adverse Effect. None of the Par Borrower or its Restricted Subsidiaries has incurred any liability or obligation under the Worker Adjustment and Retraining
Notification Act or similar state law, which remains unpaid or unsatisfied, unless such incurrence could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The hours worked and payments made to
employees of the Par Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except to the extent such violations could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. All material payments due from the Par Borrower or its Restricted Subsidiaries on account of wages and employee health and welfare insurance and other benefits have been paid or accrued
as a liability on the books of the Par Borrower, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
4.19 Eligible Accounts Receivables. Agent may rely, in determining which Accounts are Eligible Accounts Receivables, on
all statements and representations made by Borrowers with respect thereto. Borrowers warrant, with respect to each Account shown as an Eligible Accounts Receivable in a Borrowing Base Report, that:
(a) it is genuine and in all material respects what it purports to be;
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(b) it arises out of a completed, bona fide sale and delivery of goods or rendition of
services in the Ordinary Course of Business, and substantially in accordance with any purchase order, contract or other document relating thereto;
(c) it is for a sum certain, maturing as stated in the applicable invoice, a copy of which has been furnished or is available to Agent on
request;
(d) it is not subject to any offset, Lien (other than Liens in favor of Agent), deduction, defense, dispute, counterclaim or
other adverse condition except as arising in the Ordinary Course of Business and disclosed to Agent; and it is absolutely owing by the Account Debtor, without contingency in any respect;
(e) no purchase order, agreement, document or Applicable Law restricts assignment of the Account to Agent (regardless of whether, under the
UCC, the restriction is ineffective), and the applicable Borrower is the sole payee or remittance party shown on the invoice;
(f) no
extension, compromise, settlement, modification, credit, deduction or return has been authorized or is in process with respect to the Account, except discounts or allowances granted in the Ordinary Course of Business for prompt payment that are
reflected on the face of the invoice related thereto and in the reports submitted to Agent hereunder; and
(g) to the Borrowers’
knowledge,
(i) there are no facts or circumstances that are reasonably likely to impair the enforceability or
collectability of such Account;
(ii) the Account Debtor had the capacity to contract when the Account arose, continues to
meet the applicable Borrower’s customary credit standards, is Solvent, is not contemplating or subject to an Insolvency Proceeding, and has not failed, or suspended or ceased doing business; and
(iii) there are no proceedings or actions threatened or pending against any Account Debtor that could, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the Account Debtor’s financial condition.
4.20
Location of Chief Executive Office; Registered Offices.
(a) The address of each Loan Party’s chief
executive office is set forth on Schedule 4.20.
4.21 Eligible Environmental Assets; RFS.
As to any Eligible Environmental Assets in a Borrowing Base Report submitted to Agent, such Eligible Environmental Asset is not excluded as ineligible by
virtue of one or more of the excluding criteria (other than any Agent-discretionary criteria) set forth in the definition of Eligible Environmental Assets.
4.22 Insurance. The properties of Loan Parties and their Restricted Subsidiaries are insured with financially sound and
reputable insurance companies which are not Affiliates of Loan Parties (unless such Affiliate is a Captive Insurer), in such amounts, with such deductibles and covering such risks (including, without limitation, workmen’s compensation, public
liability, business interruption, property damage and directors and officers liability insurance) as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where Loan Parties operate;
provided, however, that the Loan Parties and their Restricted Subsidiaries may otherwise self-insure.
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4.23 Security Documents. The Guaranty and Security Agreement and each
other Security Document executed and delivered by a Loan Party on the date hereof is effective to create in favor of Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral described therein, except
as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting generally the enforcement of creditors’ rights, by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and an implied covenant of good faith and fair dealing. Subject to the terms of the Intercreditor Agreements and except as otherwise provided under Applicable Law (including the UCC), in the
case of (i) Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by Agent of such Collateral, and (ii) the other personal property Collateral
described in the Guaranty and Security Agreement, when financing statements in appropriate form are filed in the appropriate filing offices and such other filings as are specified by the Guaranty and Security Agreement have been completed, the Liens
on the Collateral created by the Guaranty and Security Agreement shall constitute fully perfected Liens on (to the extent that perfection can be achieved under Applicable Law by making such filings or recordings or taking such possession or control
and to the extent required by the Guaranty and Security Agreement), and security interests in, all right, title and interest of Obligors in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except
Permitted Liens).
4.24 Intermediation Documents. All material Intermediation Documents that are in existence and
effective as of the Closing Date (such Intermediation Documents as in effect on the Closing Date, the “Existing Intermediation Documents”) are in full force and effect. No Intermediation Facility is secured by any Lien
other than a Lien on Intermediation Collateral, and no event or condition has occurred which would, with the passage of time or the giving of notice or both, constitute an event of default under or permit the termination of, any Intermediation
Facility, except to the extent such event of default or termination could not reasonably be expected to cause a Material Adverse Effect.
4.25 Affected Financial Institution. None of Loan Parties is an Affected Financial Institution.
5. AFFIRMATIVE COVENANTS.
Each Loan Party and Holdings, as applicable, covenants and agrees that, until termination of all of the Commitments and payment in full of the
Obligations:
5.1 Financial Statements, Reports, Certificates. Loan Parties will deliver to Agent (and
if so requested by Agent, with copies to each Lender), each of the financial statements, compliance certificates, reports, and other items set forth on Schedule 5.1 no later than the times specified therein.
Contemporaneously with the delivery of each Compliance Certificate pursuant to Schedule 5.1, the Par Borrower will provide Agent with copies of
(x) each material Intermediation Document entered into since the delivery of the previous Compliance Certificate, and (y) each material amendment, restatement, amendment and restatement, supplement or other material modification of any
material Intermediation Document entered into since the delivery of the previous Compliance Certificate other than in the ordinary course of the administration of such Intermediation Document.
5.2 Reporting. Loan Parties
(a) will deliver to Agent (and if so requested by Agent, with copies for each Lender) each of the reports set forth on Schedule
5.2 at the times specified therein, and
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(b) agree to use commercially reasonable efforts in cooperation with Agent to facilitate and
implement a system of electronic collateral reporting in order to provide electronic reporting of each of the items set forth on such Schedule.
Borrowers
and Agent hereby agree that the delivery of the Borrowing Base Report through Agent’s electronic platform or portal, subject to Agent’s authentication process, by such other electronic method as may be approved by Agent from time to time
in its sole discretion, or by such other electronic input of information necessary to calculate the Borrowing Bases as may be approved by Agent from time to time in its sole discretion, shall in each case be deemed to satisfy the obligation of
Borrowers to deliver such Borrowing Base Report, with the same legal effect as if such Borrowing Base Report had been manually executed by Borrowers and delivered to Agent.
5.3 Existence.
(a) Except as otherwise permitted under Section 6.3 or
Section 6.4, Holdings and each Loan Party will, and will cause each of Par Borrower’s Restricted Subsidiaries to, at all times preserve and keep in full force and effect such Person’s
(i) valid existence and good standing in its jurisdiction of organization, except for dissolutions or liquidations
(A) of any Restricted Subsidiary that is not a Borrower (or direct or indirect parent thereof) whose assets are transferred to
a Loan Party (other than an Intermediation Guarantor (except in the case where such transfer is from an Intermediation Subsidiary)); or
(B) of any non-Guarantor Restricted Subsidiary (1) whose assets are transferred to
another non-Guarantor Restricted Subsidiary or (2) whose existence is no longer desirable in the conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole, and,
(ii) except as could not reasonably be expected to result in a Material Adverse Effect, good standing with respect to all other
jurisdictions in which it is qualified to do business and any rights, franchises, permits, licenses, accreditations, authorizations, or other approvals material to their businesses.
(b) Promptly following any request therefor, Holdings and the Borrowers will provide all information and documentation reasonably requested by
the Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws.
5.4 Maintenance of Properties. Each Loan Party will, and will cause each of its Restricted Subsidiaries to, maintain and
preserve all of its assets that are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear, tear, casualty, or condemnation by power of eminent domain excepted and Permitted Dispositions excepted
(and except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect), and comply with the material provisions of all material leases to which it is a party as lessee, so as to prevent the loss or forfeiture
thereof (except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect).
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5.5 Taxes. Each Loan Party will, and will cause each of its Restricted
Subsidiaries to, pay in full before delinquency or before the expiration of any extension period all material Taxes imposed, levied, or assessed against it, except to the extent that (a) such Tax is the subject of a Permitted Protest or
(b) the failure to pay such Tax could not reasonably be expected to result in a Material Adverse Effect.
5.6
Insurance.
Each Loan Party will, and will cause each of its Restricted Subsidiaries to, at Loan Parties’ expense,
maintain insurance respecting each of each Loan Party’s and its Restricted Subsidiaries’ assets wherever located, covering liabilities, losses or damages as are customarily are insured against by other Persons engaged in same or similar
businesses and similarly situated and located. All such policies of insurance shall be with financially sound and reputable insurance companies and in such amounts as is carried generally in accordance with sound business practice by companies in
similar businesses similarly situated and located; provided, however, that such insurance may be with a Captive Insurer or otherwise self-insured. All property insurance policies covering the Collateral are
to be made payable to Agent for the benefit of the Secured Parties, as their interests may appear, in case of loss, pursuant to a standard lender’s loss payable endorsement with a standard,
non-contributory “lender” or “secured party” clause All certificates of property and general liability insurance are to be delivered
to Agent, with (unless otherwise agreed by Agent in its discretion) the lender’s loss payable (but only in respect of Collateral) and additional insured endorsements in favor of Agent, and the Loan Parties shall use commercially reasonable
efforts to cause the applicable insurance company to provide for not less than thirty (30) days (ten (10) days in the case of non-payment) prior written notice to Agent of the exercise of any right
of cancellation. If any Loan Party or its Restricted Subsidiaries fails to maintain such insurance, Agent may, based on the exercise of reasonable (from the perspective of a secured lender) business judgment and after giving the Loan Parties prior
written notice of the same (unless an Event of Default has occurred and is continuing, in which case no such prior notice is necessary), arrange for such insurance, but at Loan Parties’ expense and without any responsibility on Agent’s
part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims.
The
Borrower shall give Agent prompt notice of any loss exceeding $30,000,000 covered by their or their Restricted Subsidiaries’ casualty or business interruption insurance. Unless an Event of Default shall exist or have occurred and be
continuing, to the extent that Agent receives proceeds of insurance maintained by a Loan Party (other than with respect to any such proceeds constituting the Intermediation Collateral), such proceeds shall be applied in accordance with
Section 2.4. Upon the occurrence and during the continuance of an Event of Default, Agent shall have the sole right to file claims under any property and general liability insurance policies in respect
of the Collateral, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect
the collection, compromise or settlement of any claims under any such insurance policies.
If at any time the area in which any Real
Property that is subject to a Security Document is located is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), obtain and maintain flood
insurance in such total amount and on terms that are satisfactory to Agent and all Lenders from time to time, and otherwise comply with the Flood Laws or as is otherwise satisfactory to Agent and all Lenders.
5.7 Inspections; Examinations; Books and Records.
(a) Each Loan Party will, and will cause each of its Restricted Subsidiaries to, permit Agent and its duly authorized representatives or agents
(or during the continuation of an Event of Default, any Lender) to visit any of its properties and inspect any of its assets or books and records, to examine and make copies of its books and records, and to discuss its affairs, finances, and
accounts with, and to be advised as to the same by, its officers and employees (provided an authorized representative of the Par Borrower shall
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be allowed to be present) at such reasonable times and intervals as Agent or ay Lender, as applicable, may designate and with reasonable prior notice to the Par Borrower and during regular
business hours and no more often than once in the aggregate for the Agent and the Lenders, as the case may be, in any twelve (12) consecutive month period (unless an Event of Default has occurred and is continuing, in which case there shall be
no limit to the number or frequency of such visitations or inspections while such Event of Default is continuing).
(b) Each Loan Party
will, and will cause each of its Restricted Subsidiaries to, maintain proper books of record and account, in which full, true and correct in all material respects entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Par Borrower or such Restricted Subsidiary, as the case may be; and maintain such books of record and account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over the Par Borrower or such Restricted Subsidiary, as the case may be.
(c) Each
Loan Party will, and will cause each of its Restricted Subsidiaries to, permit Agent and each of its duly authorized representatives or agents to conduct field examinations, appraisals and valuations at such reasonable times during normal business
hours and intervals as Agent may designate and, so long as no Event of Default has occurred and is continuing, with reasonable prior notice to Administrative Borrower. In connection therewith, Borrowers shall pay to Agent, field examination,
appraisal, and valuation fees and charges, as and when incurred or chargeable, as follows (i) a fee of $1,000 per day, per examiner, plus reasonable and documented
out-of-pocket expenses (including travel, meals, and lodging) for each field examination, appraisal and valuation of Loan Parties and their Restricted Subsidiaries
performed by personnel employed by Agent, and (ii) the fees or charges paid or incurred by Agent (but, in any event, no less than a charge of $1,000 per day, per Person, plus reasonable and documented out-of-pocket expenses (including travel, meals, and lodging)) if it elects to employ the services of one or more third Persons to perform field examinations of any Loan Party or its Restricted Subsidiaries,
to appraise the Collateral, or any portion thereof, or to assess any Loan Party’s or Restricted Subsidiary’s business valuation; provided, that, subject to the provisions of this clause (c), Loan Parties shall solely be required
to pay to Agent any such fees, charges, and expenses in connection with no more than one (1) examination, appraisal or valuation with respect to Loan Parties, in each case in any twelve (12) consecutive month period; provided,
further, that if Adjusted Excess Availability at any time for a three (3) consecutive Business Day period is less than the greater of (1) $85,000,000 and (2) 15% of the lesser of the Borrowing Base and the Maximum Revolver Amount), Loan Parties
shall be required to pay for one (1) additional examination, appraisal or valuation in any twelve (12) consecutive month period; provided, further, that if a Default or Event of Default exists, such field examinations,
appraisals and valuations shall be conducted as often as Agent may request, all at Borrowers’ expense.
5.8 Compliance
with Laws.
(a) Each Loan Party will, and will cause each of its Restricted Subsidiaries to, comply with the requirements of all
Applicable Laws, other than where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; and
(b) Without limiting any other provision of this Agreement, prior to the occurrence and continuance of an Event of Default, no Loan Party shall
grant to any Person any right to direct purchases, sales, transfers or other transactions in, or otherwise exercise control (including any ‘beneficial holding’) over, any Eligible Environmental Assets in any manner inconsistent with
Applicable Law or applicable program rules governing any such Eligible Environment Asset.
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5.9 Environmental. Each Loan Party will, and will cause each of its
Restricted Subsidiaries to,
(a) Keep any property either owned or operated by any Loan Party or its Restricted Subsidiaries free of any
Environmental Liens or post bonds or other financial assurances sufficient to satisfy the obligations or liability evidenced by such Environmental Liens, except to the extent that any failure to do so could not reasonably be expected to have a
Material Adverse Effect,
(b) Comply with Environmental Laws and Environmental Permits held by any Loan Party or its Restricted
Subsidiaries, except to the extent that any failure to do so could not reasonably be expected to have a Material Adverse Effect and provide to Agent documentation confirming such compliance which Agent reasonably requests in writing,
(c) Promptly notify Agent following discovery by any Loan Party or its Restricted Subsidiaries of any material Release of a Hazardous Material
from or onto property owned or operated by any Loan Party or its Restricted Subsidiaries, or from or onto any other property that could reasonably be expected to result in a material Environmental Action against or a material Environmental Liability
of any Loan Party, and take any Remedial Actions required by applicable Environmental Law to abate said Release or otherwise to come into compliance, in all material respects, with applicable Environmental Law, except that any failure to do so could
not reasonably be expected to have a Material Adverse Effect, and
(d) Promptly, but in any event within ten (10) Business Days of its
receipt thereof, provide Agent with written notice of any of the following: (i) notice that a material Environmental Lien has been filed against any of the material real or personal property of a Loan Party or its Restricted Subsidiaries that
constitutes Collateral, (ii) notice of a commencement of any material Environmental Action or written notice that a material Environmental Action will be filed against a Loan Party or its Restricted Subsidiaries, (iii) written notice of a
violation, citation, or other Environmental Action, other than any with respect to a violation, citation or other Environmental Action that could not reasonably be expected to have a Material Adverse Effect and (iv) the revocation, suspension,
or material adverse modification of any Environmental Permit, other than any such action that could not reasonably be expected to have a Material Adverse Effect.
5.10 [Reserved].
5.11 Formation of Subsidiaries. Each Loan Party will, within forty-five (45) days (or such later date as permitted by
Agent in its sole discretion) of the time that any Loan Party forms any direct or indirect wholly-owned Subsidiary or acquires any direct or indirect wholly-owned Subsidiary after the Closing Date (provided, that
(i) a designation in accordance with Section 6.11 resulting in an Unrestricted
Subsidiary becoming a Restricted Subsidiary,
(ii) any Restricted Subsidiary ceasing to constitute an Immaterial
Subsidiary,
(iii) any Restricted Subsidiary ceasing to constitute an Excluded Subsidiary pursuant to the proviso set forth
in the definition of “Excluded Subsidiary,” and
(iv) an Intermediation Subsidiary ceases to be
an Intermediation Subsidiary but remains a Restricted Subsidiary,
in each case, shall be deemed to constitute the acquisition of a Subsidiary for all
purposes of this Section 5.11):
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(a) Unless such new Subsidiary is an Excluded Subsidiary or an Unrestricted Subsidiary,
cause such new Subsidiary to provide to Agent an update to the Perfection Certificate, a joinder to any applicable Intercreditor Agreement in substantially the form attached as an exhibit thereto as required thereby, a joinder to the Guaranty and
Security Agreement, together with such other security agreements, as well as appropriate financing statements and transmitting utility filings, all in form and substance reasonably satisfactory to Agent (including being sufficient to grant Agent,
for the benefit of the Secured Parties, a first priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary); provided, that the joinder to the Guaranty and Security Agreement, and
such other security agreements shall not be required to be provided to Agent with respect to any Subsidiary of any Loan Party that is a FSHCO or CFC, and
(b) provide to Agent all other documentation, including the Governing Documents of such Subsidiary and one or more opinions of counsel covering
customary matters related thereto reasonably satisfactory to Agent and substantially consistent with those delivered on the Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to
counsel’s form of opinion reasonably satisfactory to the Agent;
provided, that in the case of clause (iv) above, such former
Intermediation Subsidiary shall not be required to deliver any documentation to Agent pursuant to this Section 5.11 to the extent that it has previously done so under this Agreement, unless reasonably requested by Agent.
5.12 Further Assurances.
(a) Each Obligor will, and will cause each of Holdings and the other Loan Parties to, at any time upon the reasonable request of Agent, execute
or deliver to Agent any and all financing statements, fixture filings, security agreements, pledges, assignments, and all other documents (the “Additional Documents”) that Agent may reasonably request in form and substance
reasonably satisfactory to Agent, to create, perfect, and continue perfected or to better perfect (in each case to the extent required by the Guaranty and Security Agreement) Agent’s Liens in all of the Collateral (and such other property
purported to be Collateral) of each Obligor and in order to fully consummate all of the transactions contemplated hereby and under the other Loan Documents; provided, that the foregoing shall not apply to any Subsidiary of Borrower
that is a CFC or FSHCO.
(b) In furtherance of, and not in limitation of, the foregoing, Holdings and each Loan Party shall take such
actions as Agent may reasonably request from time to time to ensure that the Obligations are Guaranteed by the Guarantors and are secured by the Collateral (and such other property purported to be Collateral) in each case to the extent required by
the Guaranty and Security Agreement.
(c) Notwithstanding anything to the contrary contained herein (including
Section 5.11 hereof and this Section 5.12) or in any other Loan Document,
(i) Agent shall not accept delivery of any mortgage of Real Property from any Loan Party unless each of the Lenders has
received 45 days prior written notice thereof and Agent has received confirmation from each Lender that such Lender has completed its flood insurance diligence, has received copies of all flood insurance documentation and has confirmed that flood
insurance compliance has been completed as required by the Flood Laws or as otherwise satisfactory to such Lender and
(ii)
Agent shall not accept delivery of any joinder to any Loan Document with respect to any Subsidiary of any Loan Party that is not a Loan Party, if such Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership
Regulation, unless such Subsidiary has delivered a Beneficial Ownership Certification in relation to such Subsidiary and Agent has completed its Patriot Act searches, OFAC/PEP searches and customary individual background checks for such Subsidiary,
the results of which shall be satisfactory to Agent.
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5.13 Compliance with ERISA and the IRC. In addition to and without
limiting the generality of Section 5.8, each Loan Party will, and will cause each of its Restricted Subsidiaries to
(a) except where the failure to so comply could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, comply with applicable provisions of ERISA and the IRC with respect to all Employee Benefit Plans,
(b) except as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, not take any action or fail to take action the result of which could result in a Loan Party or ERISA Affiliate incurring a liability to the PBGC or to a
Multiemployer Plan (other than to pay contributions or premiums payable in the ordinary course),
(c) not allow any facts or circumstances
to exist with respect to one or more Employee Benefit Plans that, in the aggregate, reasonably could be expected to result in a Material Adverse Effect,
(d) except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, not participate in any
prohibited transaction that could result in other than a de minimis civil penalty excise Tax, fiduciary liability or correction obligation under ERISA or the IRC,
(e) operate each Employee Benefit Plan in such a manner that will not incur any material tax liability under the IRC (including
Section 4980B of the IRC), and
(f) furnish to Agent upon Agent’s written request such additional information about any Employee
Benefit Plan for which any Loan Party or ERISA Affiliate could reasonably expect to incur any material liability.
With respect to each Pension Plan
except as could not reasonably be expected to result in material liability to Loan Parties, Loan Parties, their Subsidiaries and the ERISA Affiliates shall (i) satisfy in full and in a timely manner, without incurring any late payment or
underpayment charge or penalty and without giving rise to any Lien, all of the contribution and funding requirements of the IRC and of ERISA, and (ii) pay, or cause to be paid, to the PBGC in a timely manner, without incurring any late payment
or underpayment charge or penalty, all premiums required pursuant to ERISA.
5.14 ABL Collateral Administration.
(a) Borrowing Base Reports.
(i) Borrowers shall deliver to Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Report
(A) as of the close of business of the previous month by the 25th day of each month,
(B) during any Borrowing Base Reporting Trigger Period, as of the close of business of the previous week by Wednesday of each
week (or if a Wednesday is not a Business Day, the next succeeding Business Day),
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(C) at such other times as Agent may request after a Default or Event of
Default has occurred and is continuing,
(D) upon any Disposition of Borrowing Base Assets (including, for the avoidance of
doubt, by way of release of a Guarantor, designation of an Intermediation Subsidiary, an Investment in a non-Obligor or a Restricted Payment to a non-Obligor) not in the
Ordinary Course of Business in excess of 5.0% of the Borrowing Base,
(E) at any Borrower’s sole option with respect
to any PHR Borrowing Base included in the Borrowing Base (as well as any applicable update to the Eligible Cash included in the Borrowing Base), no more than twice every month, and
(F) upon designation of any Restricted Subsidiary as an Unrestricted Subsidiary
(G) (1) upon any Disposition pursuant to clause (e) of the definition of “Permitted
Dispositions” and clause (s) of “Permitted Investments”, (2) upon the issuance or incurrence of any Indebtedness pursuant to clause (u) of “Permitted Indebtedness” and
(3) upon any Investment pursuant to clause (q) of the definition of “Permitted Investments” and
in the case of clauses (D) and (F), such Borrowing Base Report shall demonstrate no pro
forma Overadvance.
(ii) All information (including calculation of Adjusted Excess Availability) in a Borrowing Base Report
shall be certified by Administrative Borrower. Agent may from time to time adjust any such report
(A) to reflect
Agent’s reasonable estimate of declines in value of Collateral, due to collections received in the Dominion Account or otherwise;
(B) to adjust advance rates to reflect changes in dilution, quality, mix and other factors affecting Collateral; and
(C) to the extent any information or calculation does not comply with this Agreement.
(b) Accounts.
(i) Records and Schedules of Accounts.
(A) Each Obligor shall keep accurate and complete records of its Accounts in all material respects, including all payments and
collections thereon, and shall submit to Agent sales, collection, reconciliation and other reports in form reasonably satisfactory to Agent, on such periodic basis as Agent may reasonably request in its Permitted Discretion.
(B) Each Borrower shall also provide to Agent, on or before the 25th day of each month and, during any Borrowing Base Reporting
Trigger Period, by Wednesday of each week (or if a Wednesday is not a Business Day, the next succeeding Business Day), a detailed aged trial balance of all Accounts as of the end of the preceding month and, during any Borrowing Base Reporting
Trigger Period, as of the end of the preceding week,
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specifying each Account’s Account Debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and including such proof
of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, status reports and other information as Agent may reasonably request; provided that Agent and the Lenders understand that
information delivered during a Borrowing Base Reporting Trigger Period may be preliminary and subject to customary month-end adjustments.
(ii) Taxes. If an Account of any Obligor includes a charge for any Taxes, Agent is authorized, during the
continuance of an Event of Default, in its discretion, to pay the amount thereof to the proper taxing authority for the account of such Obligor and to charge Obligors therefor; provided, however, that
neither Agent nor Lenders shall be liable for any Taxes that may be due from Obligors or with respect to any Collateral.
(iii) Account Verification. During the existence of an Event of Default, Agent shall have the right at any time,
in the name of Agent, any designee of Agent or any Obligor, to verify the validity, amount or any other matter relating to any Accounts of Obligors by mail, telephone or otherwise. Obligors shall cooperate fully with Agent in an effort to facilitate
and promptly conclude any such verification process.
(iv) Maintenance of Dominion Account.
(A) Obligors shall maintain Dominion Accounts pursuant to lockbox or other arrangements acceptable to Agent in its Permitted
Discretion. Obligors shall obtain an agreement (in form and substance satisfactory to Agent in its Permitted Discretion) from each lockbox servicer and Dominion Account bank, establishing Agent’s control over and Lien in the lockbox or
Dominion Account, which may be exercised by Agent during any Cash Dominion Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving or subordinating offset rights of such servicer or bank,
except for customary administrative charges.
(B) Agent and Lenders assume no responsibility to Obligors or their
Restricted Subsidiaries for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any bank.
(v) Proceeds of Collateral.
(A) Obligors shall request in writing and otherwise take all commercially reasonably necessary steps to ensure that all
payments on Accounts are made directly to a Dominion Account (or a lockbox relating to a Dominion Account).
(B) If any
Obligor or Restricted Subsidiary receives cash or Payment Items with respect to any Collateral, it shall hold same in trust for Agent and promptly (not later than the next Business Day) deposit same into a Dominion Account.
(c) Deposit Accounts; Securities Accounts.
(i) (A) Subject to Section 3.6, each Borrower and other Obligor shall take all
actions necessary to establish Agent’s control of (1) each Deposit Account that is a collection or concentration account or required by Section 5.14(c)(ii)(B), (2) each Securities Account and
(3) each new Deposit Account and Securities Account opened after the Closing Date (in each case,
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other than (v) any Excluded Intermediation Account, (w) accounts exclusively used for payroll, Taxes, trust, employee wage and benefit payments and other fiduciary deposit accounts,
(x) zero balance accounts (other than zero balance accounts that are collection or concentration accounts) and (y) accounts containing not more than $2,500,000 individually and $10,000,000 in the aggregate for all such accounts under this
clause (z) at any time (each an “Excluded Account” and collectively for all such accounts in clauses (w) through (z) above, the “Excluded Accounts”)). Unless
an Event of Default or Cash Dominion Period then exists, Agent agrees not to give any instruction under any Control Agreement directing disposition of funds in any account subject to such Control Agreement.
(B) Each Borrower and each other Obligor shall be the sole account holder of each Deposit Account (other than an Excluded
Account) and Securities Account (other than an Excluded Account) and shall not allow any other Person (other than Agent) to have control over a Deposit Account or a Securities Account or any Property deposited therein.
(C) Each Borrower and each other Obligor shall promptly notify Agent of any opening of a Deposit Account or a Securities
Account (in each case other than an Excluded Account).
(D) Within 120 days of the Closing Date, each Obligor shall request
and otherwise take such commercially reasonable steps to ensure that all Account Debtors forward payment directly to lockboxes and Dominion Accounts maintained pursuant to and in accordance with
Section 5.14(b)(iv).
(E) All Net Cash Proceeds of the sale or other
disposition of any Collateral, shall be deposited directly into the applicable Dominion Accounts.
(ii) (A) Within 120 days
of the Closing Date, until payment in full of the Obligations, each Borrower and the other Obligors shall establish and maintain their primary depository and treasury management relationships with the Agent or any of its Affiliates, except for
(i) Excluded Accounts, (ii) other operating and Deposit Accounts maintained with financial institutions located in Hawaii with whom the Obligors currently have accounts, with an aggregate average monthly balance for all such accounts not
to exceed $15,000,000; provided that the Agent may increase such $15,000,000 threshold or approve additional financial institutions located in Hawaii in its sole discretion, (iii) Deposit Accounts with Bank of America, N.A.
or one or more of its Affiliates in relation to Accounts set-up under the ExxonMobil SAP Clone, (iv) one or more Deposit Accounts with Fifth Third Bank, National Association or its Affiliates in aggregate
amounts not to exceed $50,000,000, and (v) depository or treasury management services for which the Agent or one of its Affiliates do not provide in the applicable jurisdiction.
(B) At all times (subject to Section 3.6), all operating and Deposit Accounts described in
Section 5.14(c)(ii)(A)(ii) shall be subject to a Control Agreement.
(d) Power of
Attorney. Each Obligor hereby irrevocably constitutes and appoints Agent (and all Persons designated by Agent) as such Obligor’s true and lawful attorney (and
agent-in-fact) for the purposes provided in this Section. Agent, or Agent’s designee, may, without notice and in either its or an Obligor’s name, but at the
cost and expense of the Borrowers and the other Obligors:
(i) During an Event of Default to the extent any of the
following relate to the Collateral,
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(A) endorse any Obligor’s name on any Payment Item or other proceeds
of Collateral (including proceeds of insurance) that come into Agent’s possession or control;
(B) notify any Account
Debtors of the assignment of their Accounts, demand and enforce payment of Accounts by legal proceedings or otherwise, and generally exercise any rights and remedies with respect to Accounts;
(C) settle, adjust, modify, compromise, discharge or release any Accounts or other Collateral, or any legal proceedings brought
to collect Accounts or Collateral;
(D) sell or assign any Accounts and other Collateral upon such terms, for such amounts
and at such times as Agent deems advisable;
(E) collect, liquidate and receive balances in Deposit Accounts, Securities
Accounts or investment accounts, and take control, in any manner, of proceeds of Collateral;
(F) prepare, file and sign an
Obligor’s name to a proof of claim or other document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien or similar document;
(G) receive, open and dispose of mail addressed to any Obligor, and notify postal authorities to deliver any such mail to an
address designated by Agent;
(H) endorse any Chattel Paper, Document, Instrument, bill of lading, or other document or
agreement relating to any Accounts, Inventory or other Collateral;
(I) use an Obligor’s stationery and sign its name
to verifications of Accounts and notices to Account Debtors;
(J) use information contained in any data processing,
electronic or information systems relating to Collateral;
(K) make and adjust claims under insurance policies;
(L) take any action as may be necessary or appropriate to obtain payment under any letter of credit, banker’s acceptance
or other instrument for which an Obligor is a beneficiary; and
(M) take all other actions with respect to the Collateral
as Agent deems appropriate to fulfill an Obligor’s obligations under the Loan Documents.
5.15 Landlord and Storage
Agreement.
(a) Upon the reasonable request of Agent, the Borrowers shall, and shall cause each of their Restricted Subsidiaries
to, provide to the Agent, copies of all material lease, storage, pipeline and similar agreements and material amendments and modifications thereto, between any Borrower or any Restricted Subsidiary and any landlord, warehouseman, processor, shipper,
bailee or other Person that owns or operates any premises or facility where any Borrowing Base Assets are located.
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5.16 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws.
Holdings and each Loan Party will, and will cause each of its Subsidiaries to comply in all material respects with all applicable Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Holdings shall implement and maintain in effect
policies and procedures designed to ensure compliance by Holdings, the Loan Parties and Par Borrower’s Subsidiaries and their respective directors, officers, employees, agents and Affiliates with all Sanctions, Anti-Corruption Laws and
Anti-Money Laundering Laws.
5.17 Beneficial Ownership Regulation. Each Loan Party will notify the Agent and each
Lender that previously received a Beneficial Ownership Certification (or a certification that the Par Borrower qualifies for an express exclusion to the “legal entity customer” definition under the Beneficial Ownership Regulation) of any
change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified therein (or, if applicable, the Par Borrower’s ceasing to fall within an express exclusion
to the definition of “legal entity customer” under the Beneficial Ownership Regulation) and promptly upon the reasonable request of the Agent or any Lender, provide the Agent or directly to such Lender, as the case may be, any
information or documentation requested by it for purposes of complying with the Beneficial Ownership Regulation.
5.18
Intermediation Documents5.19 . Each Loan Party will, and will cause each of its Restricted Subsidiaries to,
(i) perform and observe all the material terms and provisions of each Intermediation Document entered into in connection with,
or related to, any Intermediation Facility to be performed or observed by it,
(ii) maintain each such Intermediation
Document in full force and effect except to the extent such Intermediation Document is no longer used or useful in the conduct of the business of Loan Parties or Restricted Subsidiaries in the ordinary course of business, consistent with past
practices, and
(iii) enforce each such Intermediation Document in accordance with its terms, except where the failure to
do so, either individually or in the aggregate, could not reasonably be likely to have a Material Adverse Effect.
6. NEGATIVE
COVENANTS.
Each Loan Party (and in the case of Section 6.16, Holdings) covenants
and agrees that, until the termination of all of the Commitments and the payment in full of the Obligations:
6.1
Indebtedness. Each Obligor will not, and will not permit any of its Restricted Subsidiaries other than Intermediation Subsidiaries to, create, incur, assume, suffer to exist, Guarantee, or otherwise become or remain liable with respect
to any Indebtedness, except for Permitted Indebtedness.
6.2 Liens. Each Obligor will not, and will not permit any of
its Restricted Subsidiaries other than Intermediation Subsidiaries to, create, incur, assume, or suffer to exist, any Lien on or with respect to any of its assets, of any kind, whether now owned or hereafter acquired, or any income or profits
therefrom, except for Permitted Liens.
6.3 Restrictions on Fundamental Changes. Each Obligor will not, and will not
permit any of its Restricted Subsidiaries other than Intermediation Subsidiaries to,
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(a) Consolidate, amalgamate or merge with or into another Person (whether or not a Borrower
is the surviving corporation) or sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties and assets of the Par Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person, unless:
(i) either
(A) a Borrower or a Guarantor shall be the continuing or surviving Person; provided,
(1) if a Borrower is involved, a Borrower shall be the continuing or surviving Person
(2) if a Guarantor that is not an Intermediation Subsidiary is involved and such other Person is not a Borrower, such
Guarantor shall be the continuing or surviving Person, or
(B) the Person formed by or surviving any such consolidation,
amalgamation or merger (if other than a Borrower or a Restricted Subsidiary, as applicable) or to which such Disposition will have been made
(1) is organized or existing under the laws of the United States, any state thereof or the District of Columbia and
(2) assumes all the obligations of such Borrower or such Restricted Subsidiary under the Loan Documents pursuant to agreements
reasonably satisfactory to the Agent;
(ii) immediately after giving effect to such transaction, no Default or Event of
Default exists;
(iii) immediately after giving effect to such transaction on a pro forma basis,
(A) the Borrower or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than a Borrower
or a Restricted Subsidiary, as applicable), or to which such Disposition will have been made, will be permitted to incur at least $1.00 of additional Indebtedness under clause (c) of the definition of “Permitted
Indebtedness” or
(B) the Fixed Charge Coverage Ratio for the Par Borrower immediately after such
transactions would be higher than prior to such transaction; and
(iv) each Guarantor, unless such Guarantor is the Person
with which a Borrower has entered into a transaction under this covenant, will have by amendment to the Guaranty and Security Agreement confirmed that the Guaranty and Security Agreement will apply to the obligations of the Borrower or the surviving
Person in accordance with this Agreement, in a manner reasonably satisfactory to the Agent.
(b) lease all or substantially all of the
properties or assets of the Par Borrower and its Restricted Subsidiaries considered on a consolidated basis, in one or more related transactions, to any other Person.
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(c) Clauses (ii), (iii) and
(iv) of Section 6.3(a) will not apply
(x) to any
merger, amalgamation, consolidation or sale, assignment, transfer, conveyance or other disposition of assets
(A) (1)
between or among the Par Borrower and any of its Restricted Subsidiaries or (2) between the Par Borrower and its Restricted Subsidiaries, on the one hand, and any Subsidiary of the Par Borrower that is not a Restricted Subsidiary, on the other
hand, in each case of clauses (1) and (2), so long as the survivor of such merger, amalgamation or consolidation is the Par Borrower or a Restricted Subsidiary (as applicable) (and (x) if either entity was a Borrower, a Borrower, and
(y) if either entity was a Guarantor that is not an Intermediation Subsidiary, a Borrower or a Guarantor that is not an Intermediation Subsidiary) or
(B) effected in connection with a Disposition permitted by Section 6.4 or an Investment permitted by
Section 6.7 or
(y) if, in the good faith determination the Par Borrower,
the sole purpose of the transaction is to change the jurisdiction of incorporation of the Borrower.
(d) Section 6.3(a) and
(b) shall not apply to
(i) any transfer of assets by a Borrower to any other Borrower or any Guarantor
(other than an Intermediation Subsidiary),
(ii) any transfer of assets among Guarantors to a Borrower,
(iii) any transfer of assets by a Restricted Subsidiary that is not a Guarantor to (x) another Restricted Subsidiary that
is not a Guarantor or (y) a Borrower or any Guarantor,
(iv) any merger, amalgamation or consolidation of two
Subsidiaries that are not Borrowers so long as the surviving entity is a Restricted Subsidiary and
(A) if either of such
Subsidiaries was a Guarantor, so long as the surviving entity is a Guarantor; provided that if any such Guarantor is not an Intermediation Subsidiary, such surviving entity shall be a Guarantor that is not an Intermediation Subsidiary,
(v) any merger, amalgamation or consolidation effected in connection with a Disposition permitted by
Section 6.4 or an Investment permitted by Section 6.7.
(e) Upon any consolidation or merger, or any sale, assignment, transfer, conveyance or other disposition of all or substantially all of the
assets of a Borrower in accordance with Section 6.3(a) or (b) hereof, the successor formed by such consolidation or into or with which such Borrower is merged or to which such
sale, assignment, transfer, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, conveyance or other disposition, the provisions of this
Agreement referring to such “Borrower” shall refer instead to the successor and not to such Borrower), and may exercise every right and power of such Borrower under this Agreement with the same effect as if such successor
Person had been named as such Borrower herein and the predecessor will be released from all obligations.
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6.4 Disposal of Assets. Other than Permitted Dispositions or
transactions expressly permitted by Sections 6.3, each Obligor will not, and will not permit any of its Restricted Subsidiaries to Dispose of any of its or their assets (including by an allocation of assets among newly divided limited
liability companies pursuant to a “plan of division”).
6.5 Nature of Business. Each Loan Party will not,
and will not permit any of its Restricted Subsidiaries to, engage in any material line of business substantially different from those lines of business conducted by the Borrowers and their Restricted Subsidiaries on the Closing Date or any business
reasonably related, ancillary, incidental or complementary thereto, or reasonable extensions thereof.
6.6 Prepayments and
Amendments. Each Obligor will not, and will not permit
(a) any of its Restricted Subsidiaries (other than Intermediation
Subsidiaries) to, except in connection with Refinancing Indebtedness permitted by Section 6.1,
(i) optionally prepay, redeem, defease, purchase, or otherwise acquire
(A) any contractually subordinated Indebtedness of any Loan Party or its Restricted Subsidiaries, unless permitted at such time
under the subordination terms and conditions, or
(B) any Indebtedness of any Loan Party or its Restricted Subsidiaries
that is secured by a Lien on the Collateral that is junior to Agent’s Liens,
in each case, unless the Payment
Conditions are satisfied, or
(ii) make any payment on account of Indebtedness that has been contractually subordinated in
right of payment to the Obligations if such payment is not permitted at such time under the subordination terms and conditions.
(b) any of
its Restricted Subsidiaries to amend, modify or change any of the terms or provisions of:
(i) any loan documentation
governing any contractually subordinated Indebtedness of any Loan Party or its Restricted Subsidiaries, unless permitted at such time under the subordination terms and conditions; or
(ii) (A) any Intermediation Document (other than with respect to the PHR Intermediation Facility) in a manner that could
reasonably be expected to have a Material Adverse Effect, (B) the definition of “Collateral” under the PHR Intermediation Agreement, except with the Agent’s consent in its Permitted Discretion or (C) any Intermediation
Document with respect to the PHR Intermediation Facility (except as provided in clause (B) above) in a manner that could reasonably be expected to be materially adverse to the Lenders.
6.7 Restricted Payments.
(a) The Par Borrower shall not, nor shall it permit any Restricted Subsidiary other than any Intermediation Subsidiaries to
(1) declare or pay (without duplication) any dividend or make any other payment or distribution on account of the Par
Borrower’s or any of its Restricted Subsidiaries’ Equity Interests
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or to the direct or indirect holders of the Par Borrower’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends, payments or
distributions (A) payable in additional Equity Interests (other than Disqualified Equity Interests) of the Par Borrower or any Restricted Subsidiary, (B) to the Par Borrower or a Guarantor (other than an Intermediation Guarantor) or
(C) by an Intermediation Subsidiary);
(2) purchase, redeem or otherwise acquire or retire for value any Equity
Interests of the Par Borrower held by Persons other than the Par Borrower or any of its Restricted Subsidiaries;
(3) make
any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is expressly subordinated in right of payment to the Loans or the Guaranty and Security Agreement, except
(x) a payment of principal or interest at the stated maturity thereof,
(y) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase or other acquisition or
(z) any Indebtedness incurred pursuant to clause (f) of the definition of “Permitted
Indebtedness”; or
(4) make any Restricted Investment (all such payments and other actions set forth in
clauses (1) through (4) above being collectively referred to as “Restricted Payments”),
unless, at the time of and after giving effect to such Restricted Payment:
(i) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(ii) the Par Borrower would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to Incur at least $1.00 of additional Indebtedness under clause (c) of the definition of “Permitted
Indebtedness”; and
(iii) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Par Borrower and its Restricted Subsidiaries after the Closing Date (excluding Restricted Payments permitted by clauses (ii) through (xvi) of
Section 6.7(b) hereof), is less than the sum, without duplication, of:
(A)
100% of the aggregate net cash proceeds (or the aggregate fair market value of any property or assets (such fair market value as determined in the good faith reasonable judgment of the Par Borrower)) received by the Par Borrower since June 30,
2022, as a contribution Not Otherwise Applied to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Equity Interests) of the Par Borrower or from the Incurrence of Indebtedness of the Par Borrower that
has been converted into or exchanged for such Equity Interests (other than Equity Interests sold to, or Indebtedness held by, a Subsidiary of the Par Borrower), plus
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(B) with respect to Restricted Investments made by the Par Borrower and its
Restricted Subsidiaries after June 30, 2022, an amount equal to the net reduction in such Investments in any Person resulting from dividends, distributions, repayments of loans or advances, or other transfers of assets, in each case to the Par
Borrower or any Restricted Subsidiary or from the net cash proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Net Income), from the release
of a Guarantee (except to the extent any amounts are paid under such Guarantee ), not to exceed, in each case, the amount of Restricted Investments previously made by the Par Borrower or any Restricted Subsidiary in such Person or Unrestricted
Subsidiary after June 30, 2022, plus
(C) any cash dividends or distributions received by the Par Borrower or
any Restricted Subsidiary from any Unrestricted Subsidiaries since June 30, 2022, to the extent not included in Consolidated Net Income; plus
(D) to the extent any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after the Closing Date, the fair
market value of the Par Borrower’s Investment in such Subsidiary as of the date of such redesignation (such fair market value as determined in the good faith reasonable judgment of the Borrower); plus
(E) any Declined Proceeds since the Closing Date;
(b) The foregoing provisions of Section 6.7(a) shall not prohibit, so long as, in the case of
clauses (vii), (x), (xi) and (xii) of this Section 6.7(b), no Event of Default has occurred and is continuing or would be caused thereby:
(i) the payment of any dividend within 75 days after the date of declaration thereof, if at said date of declaration such
payment would have complied with the provisions of this Agreement, provided that, if such compliance is pursuant to the below clause (xi), the Borrowers shall promptly notify the Agent in writing of their intent to utilize this
clause (i), and the Agent in its Permitted Discretion may institute a reserve with respect to the amount of such declared dividend from the date of such declaration until the date of such payment;
(ii) the payment of any dividend by a Restricted Subsidiary of the Par Borrower to the holders of any class of its Equity
Interests on a pro rata basis among holders of such class;
(iii) the redemption, repurchase, retirement, defeasance or
other acquisition of any subordinated Indebtedness of the Borrowers or any Guarantor or of any Equity Interests of the Par Borrower or any Restricted Subsidiary in exchange for, or out of the net cash proceeds of a contribution to the common equity
of the Par Borrower or a substantially concurrent sale (other than to a Subsidiary of the Par Borrower) of, Equity Interests (other than Disqualified Equity Interests) of the Par Borrower; provided, that the amount of any such
net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition will be excluded from clause (iii)(B) of Section 6.7(a);
(iv) the defeasance, redemption, repurchase or other acquisition of Indebtedness subordinated to the Loans with the net cash
proceeds from an Incurrence of Refinancing Indebtedness;
(v) Investments acquired as a capital contribution to, or in
exchange for, or out of the net cash proceeds of a substantially concurrent sale (other than to a Subsidiary of the Par Borrower) of, Equity Interests (other than Disqualified Equity Interests) of the Par Borrower; provided, that the
amount of any such net cash proceeds that are utilized for any such acquisition or exchange will be excluded from clause (iii)(B) of Section 6.7(a);
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(vi) the repurchase of Equity Interests deemed to occur upon the exercise of
options or warrants to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(vii) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Par Borrower held
by any current or former employee or director of the Par Borrower (or any of its Restricted Subsidiaries) pursuant to the terms of any employee equity subscription agreement, stock option agreement, restricted stock or similar agreement entered into
in the ordinary course of business; provided, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any calendar year will not exceed $10,000,000 (with unused amounts carried
over to subsequent years);
(viii) the payment of cash in lieu of the issuance of fractional shares of Equity Interests
upon conversion or exchange of securities convertible into or exchangeable for Equity Interests of the Par Borrower; provided, that any such cash payment shall not be for the purpose of evading the limitations of this covenant (as
determined in good faith by the Board of Managers of the Par Borrower);
(ix) the repurchase of any subordinated
Indebtedness that is subordinated in right of payment to the Loans at a purchase price not greater than 101% of the principal amount thereof and accrued interest thereon in the event of a Disposition in an amount not to exceed the Net Cash Proceeds
thereof minus any amounts prepaid as described in the proviso hereto, provided, that in each case, prior to the repurchase the Par Borrower has made an offer to purchase and repurchased with the Net Cash Proceeds of such Disposition
all Loans that were validly tendered for payment in connection with such offer to purchase under Section 2.4(b)(ii);
(x) the declaration and payment of dividends to holders of any class or series of Disqualified Equity Interests of the Par
Borrower or any Restricted Subsidiary issued not in violation of this Agreement and payment of any redemption price or liquidation value of any such Disqualified Equity Interests when due in accordance with its terms;
(xi) Restricted Payments so long as Payment Conditions are satisfied;
(xii) Restricted Payments in an aggregate amount not to exceed the greater of (x) $100,000,000 and (y) 2.50% of Total Assets
(measured at the time of the making of such Restricted Payment);
(xiii) Permitted Holdings Payments;
(xiv) distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to any Borrower or a
Restricted Subsidiary by, any Unrestricted Subsidiary;
(xv) Restricted Payments for the purposes of the formation or
investment in a Permitted Joint Venture in an aggregate amount not to exceed the greater of (x) $200,000,000 and (y) 5.0% of Total Assets (measured at the time of the making of such Restricted Payment); and
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(xvi) payments or distributions, in the nature of satisfaction of
dissenters’ rights, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Agreement applicable to mergers, consolidations and transfers of all or substantially all the
property and assets of the Borrowers.
The amount of any Restricted Payment (other than cash) will be the fair market value, as determined
in good faith by an officer of the Par Borrower, on the date of such Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Par Borrower or such Subsidiary, as the case may be, pursuant to such Restricted
Payment.
In determining whether any Restricted Payment is permitted by this Section 6.7,
the Borrowers and the Restricted Subsidiaries may allocate all or any portion of such Restricted Payment among the categories described in clauses (i) through (xv) of Section 6.7(b) hereof or
Section 6.7(a) hereof (including categorization in whole or in part as a Permitted Investment); provided that, at the time of such allocation, all such Restricted Payments, or
allocated portions thereof, would be permitted under the various provisions of this Section 6.7; and provided, further, that the Borrowers and the Restricted Subsidiaries may
reclassify all or a portion of such Restricted Payment or Permitted Investment in any manner that complies with this Section 6.7, and following such reclassification such Restricted Payment or Permitted
Investment shall be treated as having been made pursuant to only the clause or clauses of this Section 6.7 to which such Restricted Payment or Permitted Investment has been reclassified.
Notwithstanding the foregoing, no Loan Party or Restricted Subsidiary shall make any Restricted Payment with a Refinery (other than an
Excluded Refinery) to any Person (other than another Loan Party or Restricted Subsidiary).
6.8 Accounting Methods;
Organizational Documents.
(a) Each Loan Party will not, and will not permit any of its Restricted Subsidiaries to, modify or
change its fiscal year or its method of accounting (other than as may be required to conform to GAAP).
(b) Each Loan Party will not, and
will not permit any of its Restricted Subsidiaries to, amend, modify or change its articles of incorporation (or corporate charter or other similar organizational documents) or amend, modify or change its bylaws (or other similar documents) in any
manner materially adverse to the rights or interests of the Lenders (as reasonably determined by the Par Borrower in good faith).
(c) Each
Loan Party will not, without providing notice to Agent within thirty (30) days thereafter (or such longer period as may be agreed to by the Agent), change its (i) jurisdiction of organization, (ii) organizational structure or type or
(iii) legal name.
6.9 Transactions with Affiliates.
(a) Each Loan Party will not, and will not permit any of its Restricted Subsidiaries (other than any Intermediation Subsidiary) to enter into
any transaction of any kind involving payments or an aggregate consideration in excess of $50,000,000 with any Affiliate of the Par Borrower or any Subsidiary thereof, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Par Borrower or such Restricted Subsidiary as would be obtainable by the Par Borrower or such Restricted Subsidiary at the time in a comparable arm’s length transaction with a Person other
than an Affiliate.
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(b) Notwithstanding Section 6.9(a), the
following transactions shall not be subject to the restriction contained in clause (a) above:
(i) transactions
between or among the Obligors or any direct or indirect Restricted Subsidiary (other than any Intermediation Subsidiary);
(ii) transactions (A) between or among non-Guarantor Restricted Subsidiaries
(other than Intermediation Subsidiaries) or (B) between or among Intermediation Subsidiaries;
(iii) payment of
reasonable and customary fees to, and reasonable and customary indemnification made available to current, former and future officers, directors, employees or consultants of the Par Borrower or a Restricted Subsidiary or Affiliate of the Par
Borrower, including reimbursement and advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance and similar
payments on behalf of, officers and directors of the Par Borrower;
(iv) Restricted Payments that are permitted by
Section 6.7 and Permitted Investments;
(v) any sale of Equity Interests
(other than Disqualified Equity Interests) of the Par Borrower and any agreement that provides customary registration rights to the equity holders of the Par Borrower or any direct or indirect parent of the Par Borrower and the performance of such
agreements;
(vi) transactions pursuant to agreements or arrangements in effect on the Closing Date and set forth on
Schedule 6.9 or any amendment, modification, or supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not materially more
disadvantageous to the Par Borrower and its Restricted Subsidiaries than the original agreement or arrangement in existence on the Closing Date;
(vii) any employment, equity award, equity contribution or equity appreciation agreement or arrangement, consulting, service or
termination agreement, or reasonable and customary indemnification arrangements, entered into by the Par Borrower or any of its Restricted Subsidiaries or Holdings or any of its Subsidiaries with officers and employees of the Par Borrower or any of
its Restricted Subsidiaries or Holdings or any of its Subsidiaries and the payment of compensation to officers and employees of the Par Borrower or any of its Restricted Subsidiaries or Holdings or any of its Subsidiaries (including amounts paid
pursuant to employee benefit plans, employee stock option or similar plans), so long as such agreement or payment have been approved by a majority of the disinterested members of the Board of Managers of the Par Borrower;
(viii) any transaction in which the Par Borrower or any Restricted Subsidiary, as the case may be, obtains a favorable written
opinion from a nationally recognized investment banking firm as to the fairness of the transaction to the Par Borrower and its Restricted Subsidiaries from a financial point of view;
(ix) (A) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or transactions
otherwise relating to the purchase or sale of goods or services, in each case in the ordinary course of business (including the payment of insurance premiums to a Captive Insurer and the payment of administrative expenses), or
(B) transactions with Permitted Joint Ventures or Unrestricted Subsidiaries
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(1) entered into in the ordinary course of business and consistent with
past practice or industry norms,
(2) entered into on customary terms (as determined by the Par Borrower in good faith,
including that such transaction is customary in respect of Persons and their Permitted Joint Ventures or Unrestricted Subsidiaries, as applicable), or
(3) that are fair to the Par Borrower and its Restricted Subsidiaries from a financial point of view (as determined by the Par
Borrower in good faith);
(x) transactions permitted by, and complying with the provisions of,
Section 6.3;
(xi) in the case of contracts for the purchase or sale of
Hydrocarbons or activities or services reasonably related thereto, or other operational contracts, any such contracts that are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts
entered into by the Borrowers or any of the Restricted Subsidiaries with third parties or otherwise on terms not materially less favorable to the Borrowers and the Restricted Subsidiaries taken as a whole than those that would be available in a
transaction with an unrelated third party in the reasonable determination of Par Borrower;
(xii) any guarantee by any
direct or indirect parent of the Par Borrower of Indebtedness or other obligations of the Borrowers or any Restricted Subsidiary (which Indebtedness or obligation is not prohibited hereunder);
(xiii) transactions with Affiliates solely in their capacity as holders of Indebtedness or Equity Interests of the Par Borrower
or any of the Par Borrower’s Subsidiaries, so long as such transaction is with all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated no more favorably than
all other holders of such class generally;
(xiv) any contribution to the equity capital of the Borrowers or any Restricted
Subsidiary;
(xv) any transaction with any Person who is not an Affiliate immediately before the consummation of such
transaction that becomes an Affiliate as a result of such transaction;
(xvi) any transaction related to the Equity
Interests of any Unrestricted Subsidiary; or
(xvii) payments by the Borrowers (or any other direct or indirect parent of
the Par Borrower) or any of the Restricted Subsidiaries pursuant to any tax sharing, allocation or similar agreement.
6.10
Use of Proceeds.
(a) Each Loan Party will not, and will not permit any of its Subsidiaries to, use the proceeds of any Loan
made hereunder for any purpose other than, (A) for working capital and general corporate purposes, and (B) to pay the fees, costs, and expenses incurred in connection with this Agreement, the other Loan Documents, and the transactions
contemplated hereby and thereby.
(b) Each Loan Party will not, and will not permit any of its Subsidiaries to, use the proceeds of any
Increase made hereunder for any purpose not permitted by Section 2.14.
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(c) (i) No part of the proceeds of the Loans will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors,
(ii) no part of the proceeds of any Loan or Letter of Credit will be used, directly or, to the knowledge of any Loan Party,
indirectly, to make any payments to a Sanctioned Entity or a Sanctioned Person, to fund any investments, loans or contributions in, or otherwise make such proceeds available to, a Sanctioned Entity or a Sanctioned Person, to fund any operations,
activities or business of a Sanctioned Entity or a Sanctioned Person, or in any other manner that would result in a violation of Sanctions by Holdings, Par Borrower or any of Par Borrower’s Subsidiaries, and
(iii) no part of the proceeds of any Loan or Letter of Credit will be used, directly or, to the knowledge of any Loan Party,
indirectly, in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws.
6.11 Designation of Restricted and Unrestricted Subsidiaries.
(a) Par Borrower may designate any Restricted Subsidiary of the Par Borrower to be an Unrestricted Subsidiary; provided, that:
(i) the aggregate fair market value, as determined in good faith by the Par Borrower, of all outstanding Investments owned
by the Par Borrower and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the Par Borrower or any Restricted Subsidiary thereof of any Indebtedness of such Subsidiary) will be deemed to be an Investment
made as of the time of such designation and that such Investment would be permitted under Section 6.7 hereof, including as a Permitted Investment;
(ii) such Subsidiary does not hold any Liens on any property of the Par Borrower or any Restricted Subsidiary thereof;
(iii) the Subsidiary being so designated:
(A) is not party to any agreement, contract, arrangement or understanding with the Par Borrower or any Restricted Subsidiary of
the Par Borrower unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Par Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates
of the Par Borrower or would be permitted under Section 6.9 hereof; and
(B) is a Person with
respect to which neither the Par Borrower nor any of its Restricted Subsidiaries has any direct or indirect obligation to subscribe for additional Equity Interests, except as would be permitted under
Section 6.7 hereof;
(iv) no Event of Default would be in existence
following such designation; and
(v) no Borrower (or direct or indirect parent thereof) may be designated as an
Unrestricted Subsidiary if such Borrower is the primary borrower, obligor or applicant with respect to any Revolver Usage outstanding at such time.
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(b) Any designation of a Restricted Subsidiary of the Par Borrower as an Unrestricted
Subsidiary will be evidenced to the Agent by filing with the Agent of a certificate duly executed by an Authorized Person of the Par Borrower certifying that such designation complied with the preceding conditions and was permitted by this
Agreement. If, at any time, any Unrestricted Subsidiary (x) would fail to meet any of the preceding requirements described in subclauses (A) or (B) of clause (iii) of
Section 6.11(a), it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness, Investments, or Liens on the property, of such Subsidiary will be deemed
to be Incurred or made by a Restricted Subsidiary of the Par Borrower as of such date and, if such Indebtedness, Investments or Liens are not permitted to be Incurred or made as of such date under this Agreement, such event will constitute an Event
of Default under this Agreement.
(c) The Par Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, that:
(i) such designation will be deemed to be an Incurrence of Indebtedness by a Restricted
Subsidiary of the Par Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if such Indebtedness is Permitted Indebtedness;
(ii) all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the time of such
designation and such designation will only be permitted if such Investments would be permitted under Section 6.7 hereof, including as Permitted Investments;
(iii) all Liens upon property or assets of such Unrestricted Subsidiary existing at the time of such designation would be
Permitted Liens; and
(iv) no Event of Default would be in existence following such designation.
Notwithstanding the provisions set forth above with respect to “Unrestricted Subsidiaries”, the Par Borrower shall
not designate any Subsidiary as an Unrestricted Subsidiary, to the extent that such Subsidiary directly or indirectly owns a Refinery (other than an Excluded Refinery).
6.12 Burdensome Agreements.
(a) Each Loan Party will not, and will not permit any of its Restricted Subsidiaries to, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of the Par Borrower or any Restricted Subsidiary to: (i) pay dividends or make any other distributions on its Equity Interests (or with respect to any other interest or participation in, or
measured by, its profits) to the Par Borrower or any of its Restricted Subsidiaries or pay any liabilities owed to the Par Borrower or any of its Restricted Subsidiaries; (ii) make loans or advances to the Par Borrower or any of its Restricted
Subsidiaries; (iii) transfer any of its properties or assets to the Par Borrower or any of its Restricted Subsidiaries or (iv) create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Secured Parties
to secure the Obligations.
(b) The restrictions in Section 6.12(a) will not apply to
encumbrances, conditions or restrictions:
(i) existing under, by reason of or with respect to (A) any Priority Fixed
Debt or Incremental Equivalent Debt, in each case, on then market terms or (B) any existing Indebtedness or any other agreements set forth on Schedule 6.12 and any Refinancing Indebtedness in respect thereof that is not more
restrictive, when taken as a whole, than the terms of such existing Indebtedness or agreement in effect on the Closing Date;
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(ii) set forth in this Agreement and the other Loan Documents;
(iii) existing under, by reason of or with respect to Applicable Law;
(iv) with respect to any Person or the property or assets of a Person acquired after the Closing Date by the Par Borrower or
any of its Restricted Subsidiaries, existing at the time of such acquisition and not Incurred in connection with or in contemplation of such acquisition, which encumbrance or restriction is not applicable to any Person or the properties or assets of
any Person, other than the Person, or the property or assets of the Person, so acquired and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof;
(v) set forth in any document governing any secured Indebtedness that limits the right of the debtor to dispose of the assets
securing such Indebtedness that is otherwise permitted to be Incurred pursuant to Sections 6.1 and 6.2 hereof;
(vi) in the case of clause (iii) of Section 6.12(a):
(A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease,
license, conveyance or contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to
transfer, option or right with respect to, or Lien on, any property or assets of the Par Borrower or any Restricted Subsidiary thereof not otherwise prohibited by this Agreement, or
(C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or
in the aggregate, detract from the value of property or assets of the Par Borrower or any Restricted Subsidiary thereof in any manner material to the Par Borrower or any Restricted Subsidiary thereof;
(vii) existing under, by reason of or with respect to any agreement for the sale or other disposition of all or substantially
all of the Equity Interests of, or property and assets of, a Restricted Subsidiary that restrict distributions by that Restricted Subsidiary pending such sale or other disposition;
(viii) existing under restrictions on cash or other deposits or net worth imposed by customers or required by insurance, surety
or bonding companies, in each case, under contracts entered into in the ordinary course of business;
(ix) existing under
joint venture or similar agreements or any Indebtedness permitted to be Incurred under this Agreement and which an officer of the Par Borrower determines in good faith will not materially adversely affect the Borrowers’ ability to make
payments of principal or interest payments on the Loans;
(x) any encumbrances or restrictions imposed by any amendments,
modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xv) of
Section 6.12(b)
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hereof, provided, that, the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacement or
refinancings, in the good faith judgment of an Authorized Person of the Par Borrower, are not materially more restrictive, taken as a whole, than those prior to such amendment, modification, restatement, renewal, extension, supplement, refunding,
replacement or refinancing;
(xi) contained in any Intermediation Document existing or entered into in accordance with this
Agreement (and, for the avoidance of doubt, shall not prohibit transfers of Collateral);
(xii) any agreement for the sale
or other disposition of some or all of the capital stock of, or any property and assets of, a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(xiii) provisions with respect to the disposition or distribution of assets or property in exchange agreements, trading
agreements, netting agreements, consignment agreements, operating agreements, construction agreements, supply agreements, terminal, agreements, storage agreements, purchase sale agreements, Hedge Agreement, joint venture agreements, asset sale
agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into in the ordinary course of business, which limitation is applicable
only to the assets that are the subject of such agreements;
(xiv) customary provisions contained in leases, sub-leases, licenses or sub-licenses and other agreements, in each case, entered into in the ordinary course of business or as is typical in the same or similar industries in
which the Borrowers or the Restricted Subsidiaries engage from time to time; and
(xv) restrictions in agreements or
instruments that prohibit the payment or making of dividends other than on a pro rata basis.
6.13 Hedging. Each Loan
Party will not, and will not permit any of its Restricted Subsidiaries to, enter into any Hedge Agreement other than any Hedge Agreement that is not for speculative purposes.
6.14 Financial Covenant. Until the payment in full of the Obligations, during the existence of a Covenant Trigger Period,
Borrowers shall:
(a) Financial Fixed Charge Coverage Ratio. Have a Financial Fixed Charge Coverage Ratio as of the last day of each
month for the 12-month period then ending of at least 1.00 to 1.00 while a Covenant Trigger Period is in effect, measured for the most recent period for which financial statements were delivered hereunder
prior to the Covenant Trigger Period and as of the last day of each month for the 12-month period ending thereafter until the Covenant Trigger Period is no longer in effect.
(b) Right to Cure Fixed Charge Coverage Ratio. Solely for purposes of determining compliance with the Financial Fixed Charge Coverage
Ratio set forth in Section 6.14(a), net cash proceeds of any cash equity contribution (other than Disqualified Equity Interests) Not Otherwise Applied by Holdings to Par Borrower and made up to tenth
Business Days after the day on which financial statements are required to be delivered for any applicable measurement period will be included in the calculation of EBITDA for such month for purposes of determining compliance with such Financial
Fixed Charge Coverage Ratio for such applicable measurement period and any subsequent measurement period that includes such month (any such equity contribution so included in the calculation of EBITDA, a “Specified Equity
Contribution”); provided that
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(i) no more than five (5) Specified Equity Contributions shall be made
during the term of this Agreement;
(ii) no more than two (2) Specified Equity Contributions shall be made during any 12-month period,
(iii) the amount of any Specified Equity Contribution shall be no
greater than 100% of the amount required to cause the Borrowers to be in compliance with the Financial Fixed Charge Coverage Ratio, and
(iv) all Specified Equity Contributions shall be disregarded for purposes of determining any baskets, tests, or pro forma tests
set forth in the covenants in this Agreement that utilize EBITDA or a Financial Fixed Charge Coverage Ratio.
To the extent that
(x) a Borrower notifies the Agent that it intends to cure non-compliance with Section 6.14(a) pursuant to this clause (b) and (y)
no Event of Default exists other than such Event of Default resulting solely from the failure to comply with Section 6.14(a), neither the Agent nor the Required Lenders shall have the right to exercise
remedies in accordance with Section 8.1, unless the Borrowers fail to so cure such non-compliance within the requisite ten Business Day period, and no Default or
Event of Default shall be deemed to exist under this Agreement (other than in respect of any exception or condition contained in this Agreement or any other Loan Document that restricts activities of Holdings or any Subsidiary thereof if an Event of
Default or Default then exists).
6.15 Intermediation Facilities. Each Loan Party will not, and will not permit any of
its Restricted Subsidiaries to, enter into any crude oil or other feedstock supply agreements, natural gas supply agreements, hydrogen supply agreements, or off-take agreements relating to intermediate or
refined products with a counterparty for purposes of facilitating an intermediation agreement, other than an Intermediation Facility.
6.16 Holdings Covenant. Holdings may not:
(a) consolidate or merge with or into another Person; or
(b) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets taken as a whole, in one
or more related transactions, to another Person, unless
(i) with respect to any merger or consolidation with another
Person, Holdings shall be the continuing or surviving Person or
(ii) with respect to any merger or consolidation with
another Person, if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings, or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”),
(A) the Successor Holdings shall be an entity organized or existing under the laws of the United States of America, any state
thereof, the District of Columbia or any territory thereof,
(B) the Successor Holdings shall expressly assume all the
obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Agent, and
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(C) the Agent shall have received at least two (2) days prior to the
date of such merger, amalgamation or consolidation (to the extent reasonably requested in writing by the Agent at least ten days prior to such date (or such lesser period of time equal to the amount of notice the Par Borrower has provided the Agent
of such transaction) all documentation and other information about Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial
Ownership Regulation that has been reasonably requested by the Agent;
provided, further, that if
the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement.
7. EVENTS OF
DEFAULT.
Any one or more of the following events shall constitute an event of default (each, an “Event of
Default”) under this Agreement:
7.1 Payments. If the Borrowers, Holdings or any other Loan Party fail
to pay when due and payable, or when declared due and payable,
(a) all or any portion of the Obligations consisting of interest, fees, or
charges due the Lender Group, reimbursement of Lender Group Expenses, or other amounts (other than any portion thereof constituting principal) constituting Obligations (including any portion thereof that accrues after the commencement of an
Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), and such failure continues for a period of five (5) Business Days or
(b) all or any portion of the principal of the Loans or
(c) any amount payable to Issuing Bank in reimbursement of any drawing under a Letter of Credit;
7.2 Covenants.
(a) If any Loan Party or Holdings fails to perform or observe any term, covenant or other agreement contained in any of
(i) Sections 3.6, 5.3 (solely with respect to the existence of Holdings or of any Loan Party in its
jurisdiction of organization), 5.6, 5.7 (solely if any Obligor refuses to allow Agent or its representatives or agents to visit any Obligor’s properties, inspect its assets or books or records, examine and make
copies of its books and records, conduct field exams, appraisals or valuations in accordance with Section 5.7(c) or discuss the Obligors’ affairs, finances, and accounts with officers and
employees of any Obligor), 5.11, 5.14(a), 5.14(b)(iv), 5.14(b)(v), 5.14(c), or 5.15 of this Agreement, or
(ii) Section 6 of this Agreement,
(b) If any Loan Party fails to perform or observe any covenant or other agreement contained in any of Sections 5.1 and
5.2 of this Agreement and such failure continues for a period of three Business Days; or
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(c) If any Loan Party or Holdings fails to perform or observe any covenant or other
agreement contained in this Agreement, or in any of the other Loan Documents, in each case, other than any such covenant or agreement that is the subject of another provision of this Section 7 (in which
event such other provision of this Section 7 shall govern), and such failure continues for a period of thirty days after the earlier of (i) the date on which such failure shall first become known
to any Authorized Person of any Loan Party, or (ii) the date on which written notice thereof is given to Borrowers by Agent; provided, however, that such notice and opportunity to cure shall not apply if the breach or failure to
perform is not capable of being cured within such period or is a willful breach by an Loan Party or Holdings;
7.3
Judgments. If one or more judgments, orders, requirements to pay issued by a Governmental Authority or awards for the payment of money involving an aggregate amount of $100,000,000 or more (net of any amounts covered by
insurance pursuant to which the insurer (including a Captive Insurer) has not denied coverage) is entered or filed against a Loan Party or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary), or with respect to any of their
respective assets, and either (a) there is a period of thirty (30) consecutive days at any time after the entry of any such judgment, order, or award during which (i) the same is not discharged, satisfied, vacated, or bonded pending
appeal, or (ii) a stay of enforcement thereof is not in effect, or (b) enforcement proceedings are commenced upon such judgment, order, or award;
7.4 Voluntary Bankruptcy, etc. If an Insolvency Proceeding is commenced by Holdings, a Loan Party or any of
a Loan Party’s Restricted Subsidiaries (other than any Immaterial Subsidiary);
7.5 Involuntary Bankruptcy,
etc. If an Insolvency Proceeding is commenced against Holdings, a Loan Party or any of a Loan Party’s Restricted Subsidiaries (other than any Immaterial Subsidiary) and any of the following events occur:
(a) Holdings, such Loan Party or Restricted Subsidiary consents to the institution of such Insolvency Proceeding against it,
(b) the petition commencing the Insolvency Proceeding is not timely controverted,
(c) the petition commencing the Insolvency Proceeding is not dismissed within sixty (60) calendar days of the date of the filing thereof,
(d) an interim trustee is appointed to take possession of all or any substantial portion of the properties or assets of, or to operate all
or any substantial portion of the business of, Holdings or such Loan Party, or
(e) an order for relief shall have been issued or entered
therein;
7.6 Default Under Other Agreements. If there is
(a) a default (i) in one or more agreements to which a Loan Party or any of its Restricted Subsidiaries is a party with one or more third
Persons relative to a Loan Party’s or any of its Restricted Subsidiaries’ Indebtedness (other than in respect of Hedge Agreements) involving an aggregate amount of $150,000,000 or more or (ii) under the PHR Intermediation Facility,
and, in the case of clause (i) or (ii), such default (A) occurs at the final maturity of the obligations thereunder, or (B) results in a right by such third Person or other counterparty thereto, irrespective of whether exercised, to
accelerate the maturity of any Loan Party’s or its Restricted Subsidiary’s obligations thereunder,
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(b) a default in or an involuntary early termination of one or more Hedge Agreements, to
which a Loan Party or any of its Restricted Subsidiaries is a party as to which such Loan Party or Restricted Subsidiary is the defaulting party or affected party and the Swap Termination Value is an aggregate amount of $150,000,000 or more or
(c) there is an event of default by a Loan Party or any of its Restricted Subsidiaries in respect of any Intermediation Facility that could
reasonably be expected to have a Material Adverse Effect;
7.7 Representations, etc. If any warranty, representation,
certificate, statement, or Record made herein or in any other Loan Document or delivered in writing to Agent or any Lender in connection with this Agreement or any other Loan Document proves to be untrue in any material respect (except that such
materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of the date of issuance or making or deemed making thereof;
7.8 Guaranty. If the obligation of any Guarantor under the Guarantee contained in the Guaranty and Security Agreement or
the obligation of Holdings under the Holdings Guarantee is limited or terminated by operation of law or by Holdings or such Guarantor (other than in accordance with the terms of this Agreement or the Guaranty and Security Agreement or the Holdings
Guarantee) or if Holdings or any Guarantor repudiates or revokes or purports to repudiate or revoke any such Guarantee or the Holdings Guarantee;
7.9 Security Documents. If the Guaranty and Security Agreement or any other Loan Document that purports to create a Lien,
shall, for any reason, fail or cease to create a valid and perfected and (except by Permitted Liens) first priority Lien on the Collateral covered thereby, except, in each case, (i) as a result of a disposition of the applicable Collateral in a
transaction permitted under this Agreement, (ii) with respect to Collateral the aggregate value of which, for all such Collateral, does not exceed $50,000,000, or (iii) as the result of an action or failure to act on the part of the Agent;
7.10 Loan Documents. The validity or enforceability of any Loan Document shall at any time for any reason (other than
solely as the result of an action or failure to act on the part of Agent) be declared to be null and void, or a proceeding shall be commenced by Holdings, a Loan Party or any of a Loan Party’s Restricted Subsidiaries, or by any Governmental
Authority having jurisdiction over Holdings, a Loan Party or any of a Loan Party’s Restricted Subsidiaries, seeking to establish the invalidity or unenforceability thereof, or Holdings, a Loan Party or any of a Loan Party’s Restricted
Subsidiaries shall deny that Holdings, such Loan Party or any of a Loan Party’s Restricted Subsidiaries has any liability or obligation purported to be created under any Loan Document;
7.11 Change of Control. A Change of Control shall occur, whether directly or indirectly;
7.12 ERISA.
(a) A Notification Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC that could reasonably be expected to have a Material Adverse Effect or
(b) any Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect;
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7.13 Certain Environmental Event. Any Environmental Action, Remedial
Action, or Environmental Liability shall arise or occur, the cost of which to any Loan Party or any of its Restricted Subsidiaries could reasonably be expected to have a Material Adverse Effect, and such Environmental Action, Remedial Action or
Environmental Liability continues uncured and is continuing for a period of thirty (30) days after the earlier of (i) the date on which such Environmental Action, Remedial Action, or Environmental Liability shall first become known to any
officer of any Loan Party or (ii) the date on which written notice thereof is given Borrower by Agent; and
7.14
Intercreditor Provisions.
(i) Any Intercreditor Agreement or the subordination provisions of the documents evidencing or
governing any subordinated Indebtedness (collectively, the “Intercreditor Provisions”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of
the applicable subordinated Indebtedness or any other Person bound by any Intercreditor Provisions; or
(ii) the Par Borrower or any other
Loan Party shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of the applicable Intercreditor Provisions, (B) that such Intercreditor Provisions exist for the benefit of
the Secured Parties, or (C) that all payments of principal of or premium and interest on the applicable subordinated Indebtedness or other Indebtedness subject to any Intercreditor Provisions, or realized from the liquidation of any property of
any Loan Party, shall be subject to any of the applicable Intercreditor Provisions.
8. RIGHTS AND REMEDIES.
8.1 Rights and Remedies. Upon the occurrence and during the continuation of an Event of Default, Agent may, and, at the
instruction of the Required Lenders, shall, in addition to any other rights or remedies provided for hereunder or under any other Loan Document or by applicable law, do any one or more of the following:
(a) (i) by written notice to the Par Borrower, declare the principal of, and any and all accrued and unpaid interest and fees in respect of,
the Loans and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan Documents to be immediately due and payable, whereupon the same shall become and be immediately due and
payable and Borrowers shall be obligated to repay all of such Obligations in full, without presentment, demand, protest, or further notice or other requirements of any kind, all of which are hereby expressly waived by the Borrowers;
(ii) direct Borrowers to provide (and Borrowers agree that upon receipt of such notice Borrowers will provide) Letter of Credit
Collateralization to Agent to be held as security for Borrowers’ reimbursement obligations for drawings that may subsequently occur under issued and outstanding Letters of Credit;
(iii) declare the Commitments terminated, whereupon the Commitments shall immediately be terminated together with (A) any
obligation of any Revolving Lender to make Revolving Loans, (B) the obligation of the Swing Lender to make Swing Loans, and (C) the obligation of Issuing Bank to issue Letters of Credit and or make any adjustment to the Borrowing Base; and
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(b) subject to any Intercreditor Agreements, exercise all other rights and remedies
available to Agent or the Lenders under the Loan Documents, under Applicable Law, or in equity, including, without limitation, any rights of setoff;
provided, that, with respect to any Event of Default resulting solely from failure of Loan Parties to comply with the financial covenants set
forth in Section 6.14, neither Agent nor the Required Lenders may exercise the foregoing remedies in this Section 8.1 until the date that is ten
(10) Business Days after the day on which financial statements are required to be delivered for the applicable month or fiscal quarter; provided further, that notwithstanding anything to the contrary set forth in this Agreement,
no member of the Lender Group shall be required to make any Revolving Loans hereunder (or extend any other credit hereunder) during such ten (10) Business Day period.
The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Default described in
Section 7.4 or Section 7.5, in addition to the remedies set forth above, without any notice to Borrowers or any other Person or any act by the Lender
Group, the Commitments shall automatically terminate and the Obligations (other than the Bank Product Obligations), inclusive of the principal of, and any and all accrued and unpaid interest and fees in respect of, the Loans and all other
Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan Documents, shall automatically become and be immediately due and payable and Borrowers shall automatically be obligated to repay
all of such Obligations in full (including Borrowers being obligated to provide (and Borrowers agree that they will provide) (1) Letter of Credit Collateralization to Agent to be held as security for Borrowers’ reimbursement obligations
in respect of drawings that may subsequently occur under issued and outstanding Letters of Credit and (2) Bank Product Collateralization to be held as security for Borrowers’ or their Restricted Subsidiaries’ obligations in respect
of outstanding Bank Products), without presentment, demand, protest, or notice or other requirements of any kind, all of which are expressly waived by Holdings, Borrowers and each other Loan Party.
8.2 Remedies Cumulative. The rights and remedies of the Lender Group under this Agreement, the other Loan Documents, and
all other agreements shall be cumulative. The Lender Group shall have all other rights and remedies not inconsistent herewith as provided under the UCC, by law, or in equity. No exercise by the Lender Group of one right or remedy shall be deemed an
election, and no waiver by the Lender Group of any Default or Event of Default shall be deemed a continuing waiver. No delay by the Lender Group shall constitute a waiver, election, or acquiescence by it.
9. WAIVERS; INDEMNIFICATION.
9.1 Demand; Protest; etc. Holdings and each Loan Party waives demand, protest, notice of protest, notice of
default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release, compromise, settlement, extension, or renewal of documents, instruments, chattel paper, and Guarantees at any time held by the Lender Group on which Holdings or
any Loan Party may in any way be liable.
9.2 The Lender Group’s Liability for Collateral. Each Borrower hereby
agrees that: (a) so long as Agent complies with its obligations, if any, under the UCC, the Lender Group shall not in any way or manner be liable or responsible for: (i) the safekeeping of the Collateral, (ii) any loss or damage
thereto occurring or arising in any manner or fashion from any cause, (iii) any diminution in the value thereof, or (iv) any act or default of any carrier, warehouseman, bailee, forwarding agency, or other Person, and (b) all risk of
loss, damage, or destruction of the Collateral shall be borne by Holdings and the Loan Parties.
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9.3 Indemnification. Holdings and each Loan Party shall pay, indemnify,
defend, and hold the Agent-Related Persons, the Lender-Related Persons, the Issuing Bank and each Participant (each, an “Indemnified Person”) harmless (to the fullest extent permitted by law) from and against any and all
claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable and documented out-of-pocket fees and
disbursements of attorneys (but limited to one counsel for all Indemnified Persons and, if reasonably necessary or advisable, one local counsel for all Indemnified Persons in each applicable jurisdiction and, solely in the case of actual or
potential conflicts of interest, one additional counsel in each applicable jurisdiction for the affected Indemnified Person(s) similarly situated taken as a whole), experts, or consultants and all other reasonable and documented out-of-pocket costs and expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and
irrespective of whether suit is brought), at any time asserted against, imposed upon, or incurred by any of them
(a) in connection with or
as a result of or related to the execution and delivery (provided, that, Loan Parties shall not be liable for costs and expenses (including attorneys’ fees) of any Lender (other than Wells Fargo) incurred in advising,
structuring, drafting, reviewing, administering or syndicating the Loan Documents), enforcement, performance, or administration (including any restructuring or workout with respect hereto) of this Agreement, any of the other Loan Documents, or the
transactions contemplated hereby or thereby or the monitoring of Holdings’, Borrower’s and its Restricted Subsidiaries’ compliance with the terms of the Loan Documents,
(b) with respect to any actual or prospective investigation, litigation, or proceeding related to this Agreement, any other Loan
Document, the making of any Loans or any issuance of any Letters of Credit hereunder, or the use of the proceeds of the Loans or the Letters of Credit provided hereunder (irrespective of whether any Indemnified Person is a party thereto),
or any act, omission, event, or circumstance in any manner related thereto, and
(c) in connection with or arising out of any presence or
Release of Hazardous Materials at, on, under, to or from any assets or properties owned, leased or operated by any Borrower or any of its Restricted Subsidiaries or any Environmental Actions, Environmental Liabilities or Remedial Actions related in
any way to any such assets or properties of any Borrower or any of its Restricted Subsidiaries (each and all of the foregoing, the “Indemnified Liabilities”); provided that Holdings’ obligations
under this Section 9.3 shall be subject to any applicable limitations set forth in the Holdings Guarantee.
The foregoing to the contrary notwithstanding, no Loan Party shall have any obligation to any Indemnified Person under this
Section 9.3 with respect to any Indemnified Liability
(y) that a court of
competent jurisdiction finally determines pursuant to a non-appealable judgment to have resulted from the gross negligence, bad faith, material breach of any Loan Document or willful misconduct of such
Indemnified Person or its officers, directors, employees, attorneys, or agents, or
(z) (i) disputes solely between or
among the Lenders that do not involve any acts or omissions of any Loan Party,
(ii) disputes solely between or among
the Lenders and their respective Affiliates that do not involve any acts or omissions of any Loan Party; it being understood and agreed that the indemnification provided for herein shall extend to Agent (but not the Lenders unless the dispute
involves an act or omission of a Loan Party) relative to disputes between or among Agent on the one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or
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(iii) that represents any Taxes or any costs attributable to Taxes, which
shall be governed by Section 2.18, other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
This provision shall survive the termination of this Agreement and the repayment in full of the Obligations. If any Indemnified Person makes any payment to
any other Indemnified Person with respect to an Indemnified Liability as to which Holdings or Loan Parties were required to indemnify the Indemnified Person receiving such payment, the Indemnified Person making such payment is entitled to be
indemnified and reimbursed by Holdings or Loan Parties with respect thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR
ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.
10. NOTICES.
Unless otherwise provided in this Agreement, all notices or demands relating to this Agreement or any other Loan Document shall be in writing
and (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by registered or certified mail (postage prepaid, return receipt requested),
overnight courier, electronic mail (at such email addresses as a party may designate in accordance herewith), or telefacsimile. In the case of notices or demands to Holdings, any Loan Party or Agent, as the case may be, they shall be sent to the
respective address set forth below:
If to Holdings or any Loan Party:
c/o Par Petroleum, LLC
825 Town &
Country Lane, Suite 1500
Houston, Texas 77024
Attn: Chief
Financial Officer
Fax No.: 832-518-5203
Email: [***]
with copies to (which shall not constitute notice):
Baker Botts L.L.P.
401 S. First Street, Suite
1200
Austin, Texas 78704
Attn: Clint Culpepper
Email: [***]
If to Agent:
WELLS FARGO BANK, NATIONAL ASSOCIATION
14241 Dallas Parkway, Suite 1300
Dallas, Texas
75254
Attn: Layne Deutscher
Email: [***]
Any party hereto may change the address at which they are to receive notices hereunder, by notice in
writing in the foregoing manner given to the other party. All notices or demands sent in accordance with this Section 10, shall be deemed received on the earlier of the date of actual receipt or three
(3) Business Days after the deposit thereof in the mail; provided, that (a) notices sent by overnight courier service shall be deemed to have been given when received, (b) notices by facsimile shall be deemed to have
been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient) and (c) notices by electronic mail shall
be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgment).
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11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION.
(a) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN
RESPECT OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO, AND
ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK; PROVIDED, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER
PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. HOLDINGS AND EACH LOAN PARTY AND EACH MEMBER OF THE LENDER GROUP
WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 11(b).
(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HOLDINGS AND EACH LOAN PARTY AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR
RESPECTIVE RIGHTS, IF ANY, TO A JURY TRIAL OF ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS (EACH A “CLAIM”). HOLDINGS, EACH LOAN PARTY AND EACH MEMBER OF THE LENDER GROUP REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(d) HOLDINGS AND EACH LOAN PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
LOCATED IN THE COUNTY OF NEW YORK AND THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST HOLDINGS OR ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
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(e) NO CLAIM MAY BE MADE BY HOLDINGS OR ANY LOAN PARTY AGAINST THE AGENT, THE SWING LENDER,
ANY JOINT LEAD ARRANGER, ANY LENDER, ANY ISSUING BANK, ANY AFFILIATE OF THE AGENT, ANY JOINT LEAD ARRANGER OR ANY LENDER, OR ANY DIRECTOR, OFFICER, EMPLOYEE, COUNSEL, REPRESENTATIVE, AGENT, OR ATTORNEY-IN-FACT OF ANY OF THE FOREGOING, AND NO CLAIM MAY BE MADE BY ANY OF THE FOREGOING AGAINST A LOAN PARTY, FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES IN RESPECT OF
ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION THEREWITH, AND HOLDINGS
AND EACH LOAN PARTY HEREBY WAIVES, RELEASES, AND AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR; PROVIDED THAT, FOR THE AVOIDANCE OF DOUBT,
NOTHING CONTAINED IN THIS SECTION 11(e) SHALL LIMIT HOLDINGS OR ANY LOAN PARTY’S INDEMNIFICATION, HOLD HARMLESS OR REIMBURSEMENT OBLIGATIONS TO EXTENT SET FORTH IN SECTION 9.3.
12. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.
12.1 Assignments and Participations.
(a) (i) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and
duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior
written consent (such consent not be unreasonably withheld or delayed) of:
(A) Par Borrower; provided, that
no consent of Par Borrower shall be required (1) if an Event of Default under Section 7.1, 7.4 or 7.5 has occurred and is continuing or (2) in connection
with an assignment to a Person that is a Lender, an Affiliate (other than natural persons) or a Related Fund of a Lender; provided, further, that Par Borrower shall be deemed to have consented to a proposed assignment
unless it objects thereto by written notice to Agent within seven (7) Business Days after having received notice thereof;
(B) Agent;
(C) each Issuing Bank, and
(D) each Swing Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to (i) a Disqualified Institution or (ii) a natural person or a holding company,
investment vehicle or trust for, or owned and operated for the primary benefit of a natural person,
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(B) no assignment may be made to a Defaulting Lender, Holdings, a Loan
Party, any Subsidiary of a Loan Party or an Affiliate of a Loan Party,
(C) the amount of the Commitments and the other
rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a
minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a
group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent an Assignment
and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with
payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent by such Lender and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a
processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent an
Administrative Questionnaire in a form approved by Agent (the “Administrative Questionnaire”).
(b) From and
after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and
(ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 9.3) and be released from any future obligations under this Agreement (and in the
case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto);
provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under
Section 14 and Section 16.9(a).
(c) By
executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows:
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(i) other than as provided in such Assignment and Acceptance, such assigning
Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto,
(ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with respect to the financial condition of Holdings, any Loan Party or the performance or observance by Holdings, any Loan Party of any of its obligations under this Agreement or any
other Loan Document furnished pursuant hereto,
(iii) such Assignee confirms that it has received a copy of this Agreement,
together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance,
(iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on
such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement,
(v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the
other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and
(vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) Immediately upon Agent’s receipt of the required processing fee, if applicable, and delivery of
notice to the assigning Lender pursuant to Section 12.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons, in each case that are not a
Disqualified Institution (any such commercial bank, financial institution or other Person, in each case other than a Disqualified Institution, a “Participant”) participating interests in all or any portion of its
Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, that
(i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other
Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder
or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged,
(ii) the Originating Lender shall remain solely responsible for the performance of such obligations,
(iii) Borrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection
with the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents,
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(iv) no Lender shall transfer or grant any participating interest under
which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of
any other Loan Document would
(A) extend the final maturity date of the Obligations hereunder in which such Participant is
participating,
(B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is
participating,
(C) release all or substantially all of the Collateral or Guarantees (except to the extent expressly
provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating,
(D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender
(other than a waiver of default interest), or
(E) decrease the amount or postpone the due dates of scheduled principal
repayments or prepayments or premiums payable to such Participant through such Lender,
(v) no participation shall be sold
to a natural person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person,
(vi) no participation shall be sold to Holdings, a Loan Party, a Subsidiary of a Loan Party or an Affiliate of a Loan Party and
(vii) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation,
except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off
in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have
any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrower, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the
making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or
participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 16.9, disclose all documents and
information which it now or hereafter may have relating to Holdings, any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or United States Treasury
Regulation 31 CFR §203.24, and the Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
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(h) Agent (as a non-fiduciary agent on behalf of
Borrower) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Loans (and the principal amount thereof and stated
interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Loans to an Affiliate of such Lender or a Related Fund
of such Lender
(i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in
whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and
(ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may
be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed
by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s).
Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrower shall treat the
Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary.
In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall
maintain a register comparable to the Register. Such assigning Lender shall disclose any portion of such register to the extent that such disclosure is necessary to establish that such Loans are in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and shall treat each person whose name is recorded in such register as the owner of such Loans for all purposes of this Agreement notwithstanding
any notice to the contrary.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and
stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the “Participant Register”). A Registered Loan (and the registered note, if any, evidencing the same) may be
participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the
same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any
information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such
commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be
conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the
avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
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(j) Agent shall make a copy of the Register (and each Lender shall make a copy of its
register or Participant Register to the extent it has one) available for review by Par Borrower from time to time as Par Borrower may reasonably request. The Register shall be available for inspection by any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(k) Upon request by any Lender to the Agent, the Agent shall be permitted to disclose to such
inquiring Lender the list of Disqualified Institutions, which such list shall be subject to the provisions of Section 16.9; provided, that the Agent shall not be responsible or have any
liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions and shall not be obligated to ascertain, monitor or inquire as to whether any Lender or
Participant or prospective Lender or Participant is a Disqualified Institution or have any liability with respect to or arising out of any assignment or participation to or disclosure of confidential information to, a Disqualified Institution.
12.2 Successors. This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of
the parties; provided, that no Loan Party nor Holdings may assign this Agreement or any rights or duties hereunder without the Lenders’ prior written consent and any prohibited assignment shall be absolutely void ab
initio. No consent to assignment by the Lenders shall release any Loan Party or Holdings from its Obligations. A Lender may assign this Agreement and the other Loan Documents and its rights and duties hereunder and thereunder pursuant to
Section 12.1 and, except as expressly required pursuant to Section 12.1, no consent or approval by any Loan Party or Holdings is required in connection
with any such assignment.
13. AMENDMENTS; WAIVERS.
13.1 Amendments and Waivers.
(a) Except as provided in Section 2.14 with respect to any Increase and
Section 2.16 with respect to any Extension, no amendment, waiver or other modification of any provision of this Agreement or any other Loan Document, and no consent with respect to any departure by
Holdings, the Borrowers or any other Loan Party therefrom, shall be effective unless the same shall be in writing and signed by the Required Lenders (or by Agent at the written request of the Required Lenders) and Holdings and the Loan Parties that
are party thereto and acknowledged by the Agent and then any such waiver or consent shall be effective, but only in the specific instance and for the specific purpose for which given; provided, that no such waiver, amendment, or
consent shall, unless in writing and signed by all of the Lenders directly and adversely affected thereby and Holdings and all of the Loan Parties that are party thereto, do any of the following:
(i) increase the amount of or extend the expiration date of any Commitment of any Lender or amend, modify, or eliminate the
penultimate sentence of Section 2.4(c)(i),
(ii) postpone or delay any date
fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees, or other amounts due hereunder or under any other Loan Document (except with respect to an Extension Offer),
(iii) reduce the principal of, or the rate of interest on, any loan or other extension of credit hereunder, or reduce any fees
or other amounts payable hereunder or under any other Loan Document (except (x) in connection with the waiver of applicability of Section 2.6(c) or the terms thereof (which waiver shall be
effective with the written consent of the Required Lenders) and (y) that any amendment or modification of defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or a reduction of
fees for purposes of this clause (iii)),
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(iv) amend, modify, or eliminate this Section or any provision of this
Agreement providing for consent or other action by all Lenders,
(v) amend, modify, or eliminate Sections
2.4(b), (d), (e), (f), Section 3.1 or Section 3.2, or
(vi) other than as permitted by Section 14.11 (as such section is in
effect on the Closing Date or is amended with the consent of all of the Lenders), release Agent’s Lien in and to all or substantially all of the Collateral,
(vii) amend, modify, or eliminate the definitions of “Required Lenders”, “Supermajority
Lenders”, or “Pro Rata Share”,
(viii) other than in connection with a merger,
amalgamation, liquidation, dissolution or sale of such Person expressly permitted by the terms hereof or the other Loan Documents, release Holdings, the Borrowers or substantially all Guarantors from any obligation for the payment of money or
consent to the assignment or transfer by Holdings, the Borrowers or substantially all Guarantors of any of its rights or duties under this Agreement or the other Loan Documents,
(ix) subject to Section 14.11 (as such section is in effect on the
Closing Date or is amended with the consent of all of the Lenders), prior to the commencement of proceedings with respect to the Loan Parties under any Debtor Relief Laws, subordinate any of the Obligations owed under the Loan Documents in right of
payment or otherwise adversely affect the priority of payment of any of such Obligations or subordinate the Liens securing the Obligations owed under the Loan Documents on any material portion of the Collateral, in each case, without the prior
written consent of each Lender, unless each adversely affected Lender has been offered a bona fide opportunity to fund or otherwise provide its pro rata share (based on the amount of the Obligations that are adversely affected thereby held by each
Lender) of such Indebtedness on the same terms (other than bona fide backstop fees and reimbursement of counsel fees and other expenses in connection with the negotiation of the terms of such transaction; such fees and expenses, “Ancillary
Fees”) as offered to all other providers (or their Affiliates) of such Indebtedness and to the extent such adversely affected Lender decides to participate in such Indebtedness, receives its pro rata share of the fees and any other similar
benefit (other than Ancillary Fees) of such Indebtedness afforded to the providers of such Indebtedness (or any of their Affiliates) in connection with providing such Indebtedness pursuant to a written offer made to each such adversely affected
Lender describing the material terms of the arrangements pursuant to which such Indebtedness is to be provided, or
(x)
amend, modify, or eliminate any of the provisions of Section 12.1 with respect to assignments to, or participations with, Persons who are Holdings, Loan Parties or Affiliates of a Loan Party.
(b) No amendment, waiver, modification, or consent shall amend, modify, waive, or eliminate,
(i) [reserved],
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(ii) any provision of
Section 14 pertaining to Agent, or any other rights or duties of Agent under this Agreement or the other Loan Documents, without the written consent of Agent, Par Borrower, and the Required Lenders;
(c) Notwithstanding anything in this Section 13.1 to the contrary,
(i) technical modifications to the Loan Documents may be made with the consent of Borrower and the Agent (and no other Person)
to the extent necessary (A) to integrate any Increase or Extended Revolver Commitments, (B) to integrate or make administrative modifications with respect to borrowings and (C) to integrate any terms or conditions from any Incremental
Amendment that are more restrictive than this Agreement in accordance with Section 2.14; and
(ii) without the consent of any Lender, Holdings, the Loan Parties and the Agent may (in their respective sole discretion, or
shall, to the extent required by any Loan Document) enter into
(x) any amendment, modification or waiver of any Loan
Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured
Parties or as required by local law to give effect to, or protect, any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with Applicable Law or this Agreement or in each case
to otherwise enhance the rights or benefits of any Lender under any Loan Document, or
(y) any applicable Intercreditor
Agreement, in each case with the holders of Indebtedness permitted by this Agreement to be secured by the Collateral or by any other assets or property.
(z) [reserved].
(d) Anything in this Section 13.1 to the contrary notwithstanding,
(i) any amendment, modification, elimination, waiver, consent, termination, or release of, or with respect to, any provision of
this Agreement or any other Loan Document that relates only to the relationship of the Lender Group among themselves, and that does not affect the rights or obligations of any Loan Party, shall not require consent by or the agreement of any Loan
Party,
(ii) any amendment, waiver, modification, elimination, or consent of or with respect to any provision of this
Agreement or any other Loan Document may be entered into without the consent of, or over the objection of, any Defaulting Lender other than any of the matters governed by Section 13.1(a)(i) through
(iii) that affect such Lender,
(iii) any Intercreditor Agreement may be waived, amended or otherwise
modified in accordance with Section 16.16, and
(iv) any entry, waiver,
amendment or modification of any intermediation access or acknowledgment agreement may be effected by an agreement or agreements in writing entered into between Agent and the counterparty to any Intermediation Facility (without the consent of any
Lender or, so long as such amendment, waiver or modification does not impose any additional duties or obligations on Holdings or the Loan Parties or alter or impair any right of Holdings or any Loan Party under the Loan Documents, Holdings or any
Loan Party, and
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(v) the Letter of Credit Sublimit and the Individual Letter of Credit
Sublimits may be increased, decreased, eliminated or otherwise modified as between Wells Fargo (in its capacity as an Issuing Bank) and any other Issuing Bank (and each applicable Issuing Bank’s Individual Letter of Credit Sublimit and
Schedule 1.2 may be modified to reflect any such increase, decrease, elimination or other modification) solely with the consent of each applicable Issuing Bank, Administrative Borrower and Agent (with respect to the applicable Issuing
Bank and Agent, such consent not to be unreasonably withheld); provided, that,
(x) only the consent of
Administrative Borrower, Agent and the Issuing Bank that then proposes to issue any Letter of Credit to exceed the then outstanding Letter of Credit Sublimit will be required with respect to increases of such Letter of Credit Sublimit, and
(y) with respect to decreases of any Issuing Bank’s Individual Letter of Credit Sublimit to the extent that such Issuing
Bank then does not have Letters of Credit issued and outstanding in excess of such proposed decreased Individual Letter of Credit Sublimit (and each applicable Issuing Bank’s Individual Letter of Credit Sublimit and Schedule 1.2
may be modified to reflect any such increase, decrease, elimination or other modification), only the consent of Agent, such Issuing Bank and Administrative Borrower (with respect to Agent and such Issuing Bank, each such consent not to be
unreasonably withheld) shall be required;
The Agent (and, if applicable, the Borrower) may, without the consent of any Lender, enter into amendments or
modifications to this Agreement or any of the other Loan Documents or to enter into additional Loan Documents in order to implement any Benchmark Replacement or any Conforming Changes or otherwise effectuate the terms of
Section 2.12(d) in accordance with the terms of Section 2.12(d); and
(e) No amendment, waiver, modification, elimination, or consent shall amend, modify, or eliminate, without written consent of Agent, Borrowers
and the Supermajority Lenders, the definition of Borrowing Base or any of the defined terms that are used in such definition to the extent that any such change results in more credit being made available to Borrowers based upon the Borrowing Base,
but not otherwise, or the definition of Maximum Revolver Amount, or change Section 2.1(c);
(f) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the other Loan
Documents pertaining to Issuing Bank, or any other rights or duties of Issuing Bank under this Agreement or the other Loan Documents, without the written consent of Issuing Bank, Agent, Borrowers, and the Required Lenders;
(g) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the other Loan
Documents pertaining to Swing Lender, or any other rights or duties of Swing Lender under this Agreement or the other Loan Documents, without the written consent of Swing Lender, Agent, Borrowers, and the Required Lenders; and
(h) Anything in this Section 13.1 to the contrary notwithstanding,
(i) any amendment, waiver, modification, elimination, or consent of or with respect to any provision of this Agreement or any
other Loan Document may be entered into without the consent of, or over the objection of, any Defaulting Lender other than any of the matters governed by Section 13.1(a)(i) through
(iii) that affect such Lender,
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(ii) any amendment contemplated by
Section 2.12(d)(iii) of this Agreement in connection with a Benchmark Transition Event shall be effective as contemplated by such Section 2.12(d)(iii)
hereof and
(iii) any amendment contemplated by Section 2.6(g) of this
Agreement in connection with the use or administration of Term SOFR shall be effective as contemplated by such Section 2.6(g).
(i) Notwithstanding anything to the contrary, no Real Property shall be taken as Collateral unless Lenders have received at least forty-five
(45) days’ prior notice and each Lender has confirmed to Agent that it has completed all flood due diligence, received copies of all flood insurance documentation and confirmed flood insurance compliance as required by the Flood Insurance
Laws or as otherwise reasonably satisfactory to such Lender. At any time that any Real Property constitutes Collateral, no amendment, waiver, modification, elimination, or consent with respect to a Loan Document shall add, increase, renew or extend
any loan, commitment or credit line hereunder until the completion of flood due diligence, documentation and coverage as required by the Flood Insurance Laws or as otherwise reasonably satisfactory to all Lenders.
13.2 No Waivers; Cumulative Remedies. No failure by Agent or any Lender to exercise any right, remedy, or option under
this Agreement or any other Loan Document, or delay by Agent or any Lender in exercising the same, will operate as a waiver thereof. No waiver by Agent or any Lender will be effective unless it is in writing, and then only to the extent specifically
stated. No waiver by Agent or any Lender on any occasion shall affect or diminish Agent’s and each Lender’s rights thereafter to require strict performance by Borrower of any provision of this Agreement. Agent’s and each
Lender’s rights under this Agreement and the other Loan Documents will be cumulative and not exclusive of any other right or remedy that Agent or any Lender may have.
13.3 Replacement of Certain Lenders.
(a) If (i) any action to be taken by the Lender Group or Agent hereunder requires the consent, authorization, or agreement of all Lenders
or all Lenders affected thereby and if such action has received the consent, authorization, or agreement of the Required Lenders but not of all Lenders or all Lenders affected thereby, or (ii) any Lender makes a claim for compensation under
Section 2.18 or any Lender (or any Participant with respect to which such Lender is the Originating Lender) is or becomes a Specified Foreign Entity, then Borrowers or Agent, upon at least five Business
Days prior irrevocable notice, may permanently replace any Lender that failed to give its consent, authorization, or agreement (a “Non-Consenting Lender”) or any Lender that made a
claim for compensation or any Lender (or any Participant with respect to which such Lender is the Originating Lender) was or became a Specified Foreign Entity (a “Tax Lender”) with one or more Replacement Lenders, and the Non-Consenting Lender or Tax Lender, as applicable, shall have no right to refuse to be replaced hereunder. Such notice to replace the Non-Consenting Lender or Tax Lender, as
applicable, shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given.
(b) Prior to the effective date of such replacement, the Non-Consenting Lender or Tax Lender, as
applicable, and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Non-Consenting Lender or Tax Lender, as applicable, being repaid in full its share of the
outstanding Obligations (without any premium or penalty of any kind whatsoever, but including (i) all interest, fees and other amounts that may be due in payable in respect thereof, (ii) an assumption of its Pro
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Rata Share of participations in the Letters of Credit, and (iii) Funding Losses). If the Non-Consenting Lender or Tax Lender, as applicable, shall
refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, Agent may, but shall not be required to, execute and deliver such Assignment and Acceptance in the name or and on behalf of the
Non-Consenting Lender or Tax Lender, as applicable, and irrespective of whether Agent executes and delivers such Assignment and Acceptance, the Non-Consenting Lender or
Tax Lender, as applicable, shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Non-Consenting Lender or Tax Lender, as applicable, shall be made in accordance
with the terms of Section 12.1. Until such time as one or more Replacement Lenders shall have acquired all of the Obligations, the Commitments, and the other rights and obligations of the Non-Consenting Lender or Tax Lender, as applicable, hereunder and under the other Loan Documents, the Non-Consenting Lender or Tax Lender, as applicable, shall remain
obligated to make the Non-Consenting Lender’s or Tax Lender’s, as applicable, Pro Rata Share of Revolving Loans and to purchase a participation in each Letter of Credit, in an amount equal to its
Pro Rata Share of participations in such Letters of Credit.
14. AGENT; THE LENDER GROUP;.
14.1 Appointment and Authorization of Agent.
(a) Each Lender hereby designates and appoints Wells Fargo as its agent under this Agreement and the other Loan Documents and each Lender
hereby irrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to designate, appoint, and authorize) Agent to execute and deliver each of the other Loan Documents on its behalf and to take
such other action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to Agent by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Agent agrees to act as agent for and on behalf of the Lenders (and the Bank Product Providers) on the conditions contained in this Section 14.
(b) Any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document notwithstanding, Agent shall not have any
duties or responsibilities, except those expressly set forth herein or in the other Loan Documents, nor shall Agent have or be deemed to have any fiduciary relationship with any Lender (or Bank Product Provider), and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Agent.
(c) Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement or the other Loan Documents
with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create
or reflect only a representative relationship between independent contracting parties.
(d) Each Lender hereby further authorizes (and by
entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to act as the secured party under each of the Loan Documents that create a Lien on any item of Collateral. Except as expressly otherwise provided
in this Agreement, Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions that Agent expressly is entitled to take or assert
under or pursuant to this Agreement and the other Loan Documents.
(e) Without limiting the generality of the foregoing, or of any other
provision of the Loan Documents that provides rights or powers to Agent, Lenders agree (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to agree) that Agent shall have the right to exercise the following
powers as long as this Agreement remains in effect:
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(i) maintain, in accordance with its customary business practices, ledgers
and records reflecting the status of the Obligations, the Collateral, payments and proceeds of Collateral, and related matters,
(ii) execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents,
instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents, or to take any other action with respect to any Collateral or Loan Documents which may be necessary to perfect, and maintain perfected, the
security interests and Liens upon Collateral pursuant to the Loan Documents,
(iii) make Loans, for itself or on behalf of
Lenders, as provided in the Loan Documents,
(iv) exclusively receive, apply, and distribute payments and proceeds of the
Collateral as provided in the Loan Documents,
(v) open and maintain such bank accounts and cash management arrangements as
Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes,
(vi) perform,
exercise, and enforce any and all other rights and remedies of the Lender Group (and Bank Product Providers) with respect to Holdings, any Loan Party or its Subsidiaries, the Obligations, the Collateral, or otherwise related to any of same as
provided in the Loan Documents, and
(vii) incur and pay such Lender Group Expenses as Agent may deem necessary or
appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents.
(f) The Agent alone shall be
authorized to determine eligibility under the Borrowing Base in accordance with the terms of this Agreement, whether to impose or release any reserve, which determinations and judgments, if exercised in good faith, shall exonerate the Agent from
liability to any Secured Party for any error in judgment.
14.2 Delegation of Duties. Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents, employees or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not be responsible for the
negligence or misconduct of any agent or attorney in fact that it selects as long as such selection was made without gross negligence or willful misconduct.
14.3 Liability of Agent. None of the Agent-Related Persons shall
(a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document
or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or
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(b) be responsible in any manner to any of the Lenders (or Bank Product Providers) for any
recital, statement, representation or warranty made by any Loan Party or any of its Subsidiaries or Affiliates, or any officer or director thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document, or for any failure of any Loan Party or its Subsidiaries or any other party to any Loan Document to perform its obligations hereunder or thereunder.
No Agent-Related Person shall be under any obligation to any Lenders (or Bank Product Providers) to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the books and records or properties of any Loan Party or its Subsidiaries. No Agent-Related Person shall have any liability
to any Lender, and Loan Party or any of their respective Affiliates if any request for a Loan, Letter of Credit or other extension of credit was not authorized by the applicable Borrower. Agent shall not be required to take any action that, in its
opinion or in the opinion of its counsel, may expose it to liability or that is contrary to any Loan Document or Applicable Law.
14.4 Reliance by Agent. Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram, telefacsimile or other electronic method of transmission, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to
have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to Borrowers or counsel to any Lender), independent accountants and other experts selected by Agent. The Agent shall
have no duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that such Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 13.1). In all cases Agent shall be entitled and fully
justified in failing or refusing to take any action or exercise any power, discretion or authority vested in it under this Agreement or any other Loan Document unless and until Agent shall
(a) receive written instructions from the Required Lenders or the Lenders, as applicable (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 13.1), specifying the action to be taken and
(b) be indemnified to its satisfaction by the Lenders against any and all liability and expenses which may be incurred by it by reason of
taking or continuing to take any such action, which indemnification may be required to be joint and several.
If Agent so requests, it shall first be
indemnified to its reasonable satisfaction by the Lenders (and, if it so elects, the Bank Product Providers) against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. Agent shall
in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders (and Bank Product Providers).
14.5 Notice of Default or Event of
Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, except with respect to defaults in the payment of principal, interest, fees, and expenses required to be paid to Agent for
the account of the Lenders and, except with respect to Events of Default of which Agent has actual knowledge, unless Agent shall have received written notice from a Lender or Par Borrower referring to this Agreement, describing such Default or Event
of Default, and stating that such notice is a “notice of default.” Agent promptly will notify the Lenders of its receipt of any such notice or of any Event of Default of which Agent has actual knowledge. If any Lender obtains actual
knowledge of any Event of Default, such Lender promptly shall notify the
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other Lenders and Agent of such Event of Default. Each Lender shall be solely responsible for giving any notices to its Participants, if any. Subject to
Section 14.4, Agent shall take such action with respect to such Default or Event of Default as may be requested by the Required Lenders in accordance with Section 9; provided,
that unless and until Agent has received any such request, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
14.6 Credit Decision. Each Lender (and Bank Product Provider) acknowledges that none of the Agent-Related Persons has made
any representation or warranty to it, and that no act by Agent hereinafter taken, including any review of the affairs of any Loan Party and its Subsidiaries or Affiliates, shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender (or Bank Product Provider). Each Lender represents (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent) to Agent that it has, independently and without reliance
upon any Agent-Related Person and based on such due diligence, documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and
creditworthiness of each Borrower or any other Person party to a Loan Document, and all applicable bank regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to
Borrowers. Each Lender also represents (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent) that it will, independently and without reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations
as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of each Borrower or any other Person party to a Loan Document. Except for notices, reports, and other
documents expressly herein required to be furnished to the Lenders by Agent, Agent shall not have any duty or responsibility to provide any Lender (or Bank Product Provider) with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of any Borrower or any other Person party to a Loan Document that may come into the possession of any of the Agent-Related Persons. Each Lender acknowledges (and by entering
into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that Agent does not have any duty or responsibility, either initially or on a continuing basis (except to the extent, if any, that is expressly specified
herein) to provide such Lender (or Bank Product Provider) with any credit or other information with respect to any Borrower, its Affiliates or any of their respective business, legal, financial or other affairs, and irrespective of whether such
information came into Agent’s or its Affiliates’ or representatives’ possession before or after the date on which such Lender became a party to this Agreement (or such Bank Product Provider entered into a Bank Product Agreement).
14.7 Costs and Expenses; Indemnification. Agent may incur and pay Lender Group Expenses to the extent Agent
reasonably deems necessary or appropriate for the performance and fulfillment of its functions, powers, and obligations pursuant to the Loan Documents, including court costs, attorneys’ fees and expenses, fees and expenses of financial
accountants, advisors, consultants, and appraisers, costs of collection by outside collection agencies, auctioneer fees and expenses, and costs of security guards or insurance premiums paid to maintain the Collateral, whether or not the Loan Parties
are obligated to reimburse Agent or Lenders for such expenses pursuant to this Agreement or otherwise. Agent is authorized and directed to deduct and retain sufficient amounts from payments or proceeds of the Collateral received by Agent to
reimburse Agent for such out-of-pocket costs and expenses prior to the distribution of any amounts to Lenders (or Bank Product Providers). The Loan Parties agree to pay
the Lender Group Expenses within 30 days of a Loan Parties’ receipt of written notification thereof. In the event Agent is not reimbursed for such costs and expenses by the Loan Parties, each Lender hereby agrees that it is and shall be
obligated to pay to Agent such Lender’s ratable share thereof. Whether or not the transactions contemplated hereby
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are consummated, each of the Lenders, on a ratable basis, shall indemnify and defend the Agent-Related Persons (to the extent not reimbursed by or on behalf of the Loan Parties and without
limiting the obligation of the Loan Parties to do so) from and against any and all Indemnified Liabilities; provided, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting solely from such Person’s gross negligence or willful misconduct nor shall any Lender be liable for the obligations of any Defaulting Lender in failing to make a Loan or other extension of credit hereunder. Without
limitation of the foregoing, each Lender shall reimburse Agent upon demand for such Lender’s ratable share of any costs or out of pocket expenses (including attorneys, accountants, advisors, and consultants fees and expenses) incurred by Agent
in connection with the preparation, execution, delivery, administration, modification, amendment, or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this
Agreement or any other Loan Document to the extent that Agent is not reimbursed for such expenses by or on behalf of the Loan Parties. The undertaking in this Section shall survive the payment of all Obligations hereunder and the resignation or
replacement of Agent.
14.8 Agent in Individual Capacity. Wells Fargo and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, provide Bank Products to, acquire Equity Interests in, and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Loan Party and its
Subsidiaries and Affiliates and any other Person party to any Loan Document as though Wells Fargo were not Agent hereunder, and, in each case, without notice to or consent of the other members of the Lender Group. The other members of the Lender
Group acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, Wells Fargo or its Affiliates may receive information regarding a Loan Party or its
Affiliates or any other Person party to any Loan Documents that is subject to confidentiality obligations in favor of such Loan Party or such other Person and that prohibit the disclosure of such information to the Lenders (or Bank Product
Providers), and the Lenders acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which
waiver Agent will use its reasonable best efforts to obtain), Agent shall not be under any obligation to provide such information to them. The terms “Lender” and “Lenders” include Wells Fargo in
its individual capacity.
14.9 Successor Agent. Agent may resign as Agent upon thirty (30) days’ (ten
(10) days’ if an Event of Default has occurred and is continuing) prior written notice to the Lenders (unless such notice is waived by the Required Lenders) and Par Borrower (unless such notice is waived by Par Borrower or a Default or
Event of Default has occurred and is continuing) and without any notice to the Bank Product Providers. If Agent resigns under this Agreement, the Required Lenders shall be entitled, with (so long as no Event of Default has occurred and is
continuing) the consent of Par Borrower (such consent not to be unreasonably withheld, delayed, or conditioned), appoint a successor Agent for the Lenders (and the Bank Product Providers). If, at the time that Agent’s resignation is effective,
it is acting as Issuing Bank or the Swing Lender, such resignation shall also operate to effectuate its resignation as Issuing Bank or the Swing Lender, as applicable, and it shall automatically be relieved of any further obligation to issue Letters
of Credit, or to make Swing Loans. If no successor Agent is appointed prior to the effective date of the resignation of Agent, Agent may appoint, after consulting with the Lenders and Par Borrower, a successor Agent. If Agent has materially breached
or failed to perform any material provision of this Agreement or of Applicable Law, the Required Lenders may agree in writing to remove and replace Agent with a successor Agent from among the Lenders with (so long as no Event of Default has occurred
and is continuing) the consent of Par Borrower (such consent not to be unreasonably withheld, delayed, or conditioned). In any such event, upon the acceptance of its appointment as successor Agent hereunder, such successor Agent shall succeed to all
the rights, powers, and duties of the retiring Agent and the term “Agent” shall mean such successor Agent and the retiring Agent’s appointment, powers, and duties as Agent shall be terminated. After any retiring
Agent’s resignation hereunder as Agent, the provisions of this Section 14 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.
If no successor Agent has accepted appointment as Agent by the date which is thirty (30) days (or ten (10) days if an Event of Default has occurred and is continuing) following a retiring Agent’s notice of resignation,
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(1) the retiring Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Agent on behalf of the Lenders under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until
such time as a successor Agent is appointed) and
(2) except for any indemnity payments owed to the retiring Agent, all
payments, communications and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Agent as provided for above.
14.10 Lender in Individual Capacity. Any Lender and its respective Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, provide Bank Products to, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Loan Party and its Subsidiaries and
Affiliates and any other Person party to any Loan Documents as though such Lender were not a Lender hereunder without notice to or consent of the other members of the Lender Group (or the Bank Product Providers). The other members of the Lender
Group acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, such Lender and its respective Affiliates may receive information regarding a Loan Party
or its Affiliates or any other Person party to any Loan Documents that is subject to confidentiality obligations in favor of such Loan Party or such other Person and that prohibit the disclosure of such information to the Lenders, and the Lenders
acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver such Lender will use
its reasonable best efforts to obtain), such Lender shall not be under any obligation to provide such information to them.
14.11
Collateral and Guaranty Matters.
(a) The Lenders hereby irrevocably authorize (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to authorize) Agent to release any Lien on any Collateral
(i) upon
the payment in full of all of the Obligations (other than contingent expense reimbursement or indemnification obligations for which no claim has been made in writing),
(ii) constituting property being sold or disposed of if a release is required or desirable in connection therewith and, at the
request of the Agent, if Borrower certifies to Agent that the sale or disposition is permitted under Section 6.4 and is not a sale or disposition to another Loan Party (and Agent may rely conclusively
on any such certificate, without further inquiry),
(iii) constituting property in which no Loan Party or any of its
Restricted Subsidiaries owned any interest at the time Agent’s Lien was granted nor at any time thereafter,
(iv)
constituting property leased or licensed to a Loan Party or its Restricted Subsidiaries under a lease or license that has expired or is terminated in a transaction permitted under this Agreement,
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(v) to the extent such Collateral constitutes an Excluded Asset,
(vi) with respect to any second-priority Lien on any Priority Fixed Debt Collateral, to the extent the applicable Other Debt
Representative releases a Lien in its favor on such Collateral,
(vii) owned by any Guarantor upon the release of its
Guarantee under the Guaranty and Security Agreement in accordance with Section 14.11(b) or
(viii) in connection with a credit bid or purchase authorized under this
Section 14.11.
The Loan Parties and the Lenders hereby irrevocably authorize (and by entering into a Bank
Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent, based upon the instruction of the Required Lenders, to
(A) consent to the sale of, credit bid, or purchase (either directly or indirectly through one or more entities) all or any
portion of the Collateral at any sale thereof conducted under the provisions of any Debtor Relief Law, including Section 363 of the Bankruptcy Code,
(B) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at
any sale or other disposition thereof conducted under the provisions of the UCC, including pursuant to Sections 9-610 or 9-620 of the UCC or other Applicable Law, or
(C) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the
Collateral at any other sale or foreclosure conducted or consented to by Agent in accordance with Applicable Law in any judicial action or proceeding or by the exercise of any legal or equitable remedy.
In connection with any such credit bid or purchase,
(i) the Obligations owed to the Lenders and the Bank Product Providers shall be entitled to be, and shall be, credit bid on a
ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not impair or unduly delay the ability of Agent to credit bid or purchase at such sale or
other disposition of the Collateral and, if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of Agent to credit bid at such sale or other disposition, then such claims shall be disregarded,
not credit bid, and not entitled to any interest in the Collateral that is the subject of such credit bid or purchase) and the Lenders and the Bank Product Providers whose Obligations are credit bid shall be entitled to receive interests (ratably
based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the Collateral that is the subject of such credit bid or purchase (or in the Equity Interests of the any entities that are
used to consummate such credit bid or purchase), and
(ii) Agent, based upon the instruction of the Required Lenders, may
accept non-cash consideration, including debt and equity securities issued by any entities used to consummate such credit bid or purchase and in connection therewith Agent may reduce the Obligations owed to
the Lenders and the Bank Product Providers (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such
non-cash consideration; provided, that Bank Product Obligations not entitled to the application set forth in Section 2.4(b)(iii)(J) shall not be
entitled to be, and shall not be, credit bid, or used in the calculation of the ratable interest of the Lenders and Bank Product Providers in the Obligations which are credit bid.
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Except as provided above, Agent will not execute and deliver a release of any Lien on any Collateral without
the prior written authorization of (y) if the release is of all or substantially all of the Collateral, all of the Lenders (without requiring the authorization of the Bank Product Providers), or (z) otherwise, the Required Lenders (without
requiring the authorization of the Bank Product Providers). Upon request by Agent or Par Borrower at any time, the Lenders will (and if so requested, the Bank Product Providers will) confirm in writing Agent’s authority to release any such
Liens on particular types or items of Collateral pursuant to this Section 14.11; provided, that
(1) anything to the contrary contained in any of the Loan Documents notwithstanding, Agent shall not be required to execute any
document or take any action necessary to evidence such release on terms that, in Agent’s opinion, could expose Agent to liability or create any obligation or entail any consequence other than the release of such Lien without recourse,
representation, or warranty, and
(2) such release shall not in any manner discharge, affect, or impair the Obligations or
any Liens (other than those expressly released) upon (or obligations of Borrowers in respect of) any and all interests retained by any Borrower, including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
Each Lender further hereby irrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to
irrevocably authorize) Agent, at its option and in its sole discretion, to subordinate (by contract or otherwise) any Lien granted to or held by Agent on any property under any Loan Document
(a) to the holder of any Permitted Lien on such property if such Permitted Lien secures purchase money Indebtedness
(including Capitalized Lease Obligations) which constitute Permitted Indebtedness or Permitted Retail Store Purchase Money Indebtedness and
(b) to the extent Agent has the authority under this Section 14.11 to
release its Lien on such property.
(b) The Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank
Product Provider shall be deemed to authorize) Agent to release any Guarantor from its Guarantee under the Guaranty and Security Agreement if
(i) the Obligations (other than contingent expense reimbursement or indemnification obligations for which no claim has been
made in writing) have been paid in full,
(ii) all the Equity Interests of such Guarantor shall be sold, transferred
conveyed, associated or otherwise disposed of to a Person that is not the a Loan Party or a Restricted Subsidiary in a transaction permitted by Section 6.4,
(iii) such Guarantor becomes an Excluded Subsidiary or an Immaterial Subsidiary, upon request by the Borrower to the Agent or
(iv) such Guarantor is designated as an Unrestricted Subsidiary in accordance with the terms hereof;
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provided, that, a Guarantor that becomes a non-wholly
owned Subsidiary will not be released from its guarantee if the transaction that resulted in its becoming non-wholly owned was done with an Affiliate, except if such transaction (i) constitutes a
Permitted Investment or Permitted Disposition, and (ii) is being effected primarily for a bona fide business purpose independent of, and unrelated to, releasing such guarantee. At the written request and sole expense of the Borrower, the Agent,
at the sole expense of the Borrower and the applicable Guarantor, shall promptly execute and deliver to the Borrower or such Guarantor all releases, termination statements and/or other documents reasonably necessary or desirable to evidence such
release; provided that the Borrower shall have delivered to the Agent a written request for release identifying the relevant Guarantor together with a certification by the Borrower stating that such transaction is in compliance with
this Agreement and the other Loan Documents.
(c) Agent shall have no obligation whatsoever to any of the Lenders (or the Bank Product
Providers)
(i) to verify or assure that the Collateral exists or is owned by Holdings, a Loan Party or any of its
Restricted Subsidiaries or is cared for, protected, or insured or has been encumbered,
(ii) to verify or assure that
Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority,
(iii) to verify or assure that any particular items of Collateral meet the eligibility criteria applicable in respect thereof,
(iv) to impose, maintain, increase, reduce, implement, or eliminate any particular reserve hereunder or to determine
whether the amount of any reserve is appropriate or not, or
(v) to exercise at all or in any particular manner or under
any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Loan Documents,
it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions
contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to
any Lender (or Bank Product Provider) as to any of the foregoing, except as otherwise expressly provided herein.
14.12
Restrictions on Actions by Lenders; Sharing of Payments.
(a) Each of the Lenders agrees that it shall not, without the
express written consent of Agent, set off against the Obligations, any amounts owing by such Lender to Holdings, any Loan Party or its Restricted Subsidiaries or any deposit accounts of Holdings, any Loan Party or its Restricted Subsidiaries now or
hereafter maintained with such Lender. Each of the Lenders further agrees that it shall not, unless specifically requested to do so in writing by Agent, take or cause to be taken any action, including, the commencement of any legal or equitable
proceedings to enforce any Loan Document against any Borrower or any Guarantor or to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral.
(b) If, at any time or times any Lender shall receive
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(i) by payment, foreclosure, setoff, or otherwise, any proceeds of
Collateral or any payments with respect to the Obligations, except for any such proceeds or payments received by such Lender from Agent pursuant to the terms of this Agreement, or
(ii) payments from Agent in excess of such Lender’s Pro Rata Share of all such distributions by Agent,
such Lender promptly shall
(A)
turn the same over to Agent, in kind, and with such endorsements as may be required to negotiate the same to Agent, or in immediately available funds, as applicable, for the account of all of the Lenders and for application to the Obligations in
accordance with the applicable provisions of this Agreement, or
(B) purchase, without recourse or warranty, an undivided
interest and participation in the Obligations owed to the other Lenders so that such excess payment received shall be applied ratably as among the Lenders in accordance with their Pro Rata Shares; provided, that to the extent that such
excess payment received by the purchasing party is thereafter recovered from it, those purchases of participations shall be rescinded in whole or in part, as applicable, and the applicable portion of the purchase price paid therefor shall be
returned to such purchasing party, but without interest except to the extent that such purchasing party is required to pay interest in connection with the recovery of the excess payment.
14.13 Agency for Perfection. Agent hereby appoints each other Lender (and each Bank Product Provider) as its agent (and
each Lender hereby accepts (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to accept) such appointment) for the purpose of perfecting Agent’s Liens in assets which, in accordance with Article 8 or
Article 9, as applicable, of the UCC can be perfected by possession or control. Should any Lender obtain possession or control of any such Collateral, such Lender shall notify Agent thereof, and, promptly upon Agent’s request therefor shall
deliver possession or control of such Collateral to Agent or in accordance with Agent’s instructions.
14.14 Payments by
Agent to the Lenders. All payments to be made by Agent to the Lenders (or Bank Product Providers) shall be made by bank wire transfer of immediately available funds pursuant to such wire transfer instructions as each party may designate for
itself by written notice to Agent. Concurrently with each such payment, Agent shall identify whether such payment (or any portion thereof) represents principal, premium, fees, or interest of the Obligations.
14.15 Concerning the Collateral and Related Loan Documents. Each member of the Lender Group authorizes and directs Agent
to enter into this Agreement and the other Loan Documents. Each member of the Lender Group agrees (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to agree) that any action taken by Agent in accordance with
the terms of this Agreement or the other Loan Documents relating to the Collateral and the exercise by Agent of its powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all
of the Lenders (and such Bank Product Provider).
14.16 Field Examination Reports; Confidentiality; Disclaimers by Lenders;
Other Reports and Information. By becoming a party to this Agreement, each Lender (and by entering into a Bank Product Agreement, each Bank Product Provider):
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(a) is deemed to have requested that Agent furnish such Lender, promptly after it becomes
available, a copy of each field examination report respecting any Loan Party or its Subsidiaries (each, a “Report”) prepared by or at the request of Agent, and Agent shall so furnish each Lender with such Reports,
(b) expressly agrees and acknowledges that Agent does not (i) make any representation or warranty as to the accuracy of any Report, and
(ii) shall not be liable for any information contained in any Report,
(c) expressly agrees and acknowledges that the Reports are not
comprehensive audits or examinations, that Agent or other party performing any field examination will inspect only specific information regarding Holdings, the Loan Parties and their Subsidiaries and will rely significantly upon Holdings’,
Borrowers’ and their Subsidiaries’ books and records, as well as on representations of Borrowers’ personnel,
(d) agrees
to keep all Reports and other material, non-public information regarding Holdings, the Loan Parties and their Subsidiaries and their operations, assets, and existing and contemplated business plans in a
confidential manner in accordance with Section 16.9, and
(e) without limiting the
generality of any other indemnification provision contained in this Agreement, agrees:
(i) to hold Agent and any other
Lender preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the
indemnifying Lender has made or may make to Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a loan or loans of Borrowers, and
(ii) to pay and protect, and indemnify, defend and hold Agent, and any such other Lender preparing a Report harmless from and
against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including, attorneys’ fees and costs) incurred by Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties
who might obtain all or part of any Report through the indemnifying Lender.
In addition to the foregoing,
(x) any Lender may from time to time request of Agent in writing that Agent provide to such Lender a copy of any report or
document provided by Holdings, any Loan Party or its Subsidiaries to Agent that has not been contemporaneously provided by Holdings, such Loan Party or such Subsidiary to such Lender, and, upon receipt of such request, Agent promptly shall provide a
copy of same to such Lender,
(y) to the extent that Agent is entitled, under any provision of the Loan Documents, to
request additional reports or information from Holdings, any Loan Party or its Subsidiaries, any Lender may, from time to time, reasonably request Agent to exercise such right as specified in such Lender’s notice to Agent, whereupon Agent
promptly shall request of Borrowers the additional reports or information reasonably specified by such Lender, and, upon receipt thereof from Holdings, such Loan Party or such Subsidiary, Agent promptly shall provide a copy of same to such Lender,
and
(z) any time that Agent renders to Borrowers a statement regarding the Loan Account, Agent shall send a copy of such
statement to each Lender.
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14.17 Several Obligations; No Liability. Notwithstanding that certain
of the Loan Documents now or hereafter may have been or will be executed only by or in favor of Agent in its capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of Agent (if any) to make any credit available
hereunder shall constitute the several (and not joint) obligations of the respective Lenders on a ratable basis, according to their respective Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time
outstanding, the amount of their respective Commitments. Nothing contained herein shall confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of, the business, assets, profits, losses, or liabilities of
any other Lender. Each Lender shall be solely responsible for notifying its Participants of any matters relating to the Loan Documents to the extent any such notice may be required, and no Lender shall have any obligation, duty, or liability to any
Participant of any other Lender. Except as provided in Section 14.7, no member of the Lender Group shall have any liability for the acts of any other member of the Lender Group. No Lender shall be responsible to any
Borrower or any other Person for any failure by any other Lender (or Bank Product Provider) to fulfill its obligations to make credit available hereunder, nor to advance for such Lender (or Bank Product Provider) or on its behalf, nor to take any
other action on behalf of such Lender (or Bank Product Provider) hereunder or in connection with the financing contemplated herein.
14.18 Joint Lead Arrangers. Each of the Joint Lead Arrangers, in such capacity, shall not have any right, power,
obligation, liability, responsibility, or duty under this Agreement other than those applicable to it in its capacity as a Lender, as Agent, as Swing Lender or as Issuing Bank. Without limiting the foregoing, each of the Joint Lead Arrangers, in
such capacity, shall not have or be deemed to have any fiduciary relationship with any Lender or any Loan Party. Each Lender, Agent, Swing Lender, Issuing Bank and each Loan Party acknowledges that it has not relied, and will not rely, on the Joint
Lead Arrangers in deciding to enter into this Agreement or in taking or not taking action hereunder. Each of the Joint Lead Arrangers, in such capacity, shall be entitled to resign at any time by giving notice to Agent and Borrower.
14.19 Erroneous Payments.
(a) Each Lender, each Issuing Bank, each other Bank Product Provider and any other party hereto hereby severally agrees that if
(i) Agent notifies (which such notice shall be conclusive absent manifest error) such Lender or Issuing Bank or any Bank
Product Provider (or the Lender which is an Affiliate of a Lender, Issuing Bank or Bank Product Provider) or any other Person that has received funds from Agent or any of its Affiliates, either for its own account or on behalf of a Lender, Issuing
Bank or Bank Product Provider (each such recipient, a “Payment Recipient”) that Agent has determined in its sole discretion that any funds received by such Payment Recipient were erroneously transmitted to, or otherwise erroneously or
mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) or
(ii) any Payment
Recipient receives any payment from Agent (or any of its Affiliates)
(x) that is in a different amount than, or on a
different date from, that specified in a notice of payment, prepayment or repayment sent by Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable,
(y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by Agent (or any of its
Affiliates) with respect to such payment, prepayment or repayment, as applicable, or
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(z) that such Payment Recipient otherwise becomes aware was transmitted or
received in error or by mistake (in whole or in part) then, in each case, an error in payment shall be presumed to have been made (any such amounts specified in clauses (i) or (ii) of this
Section 14.19(a), whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise; individually and collectively, an “Erroneous
Payment”), then, in each case, such Payment Recipient is deemed to have knowledge of such error at the time of its receipt of such Erroneous Payment; provided that nothing in this Section shall require Agent to provide any of the
notices specified in clauses (i) or (ii) above.
Each Payment Recipient agrees that it shall not assert any right or
claim to any Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by Agent for the return of any Erroneous
Payments, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(b)
Without limiting the immediately preceding clause (a), each Payment Recipient agrees that, in the case of clause (a)(ii) above, it shall promptly notify Agent in writing of such occurrence.
(c) In the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times remain the
property of Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of Agent, and upon demand from Agent such Payment Recipient shall (or, shall cause any Person who received any portion of an Erroneous Payment on
its behalf to), promptly, but in all events no later than one Business Day thereafter, return to Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds and in the currency so
received, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to Agent at the greater of the Federal
Funds Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by Agent for any reason, after demand therefor by Agent in
accordance with immediately preceding clause (c), from any Lender that is a Payment Recipient or an Affiliate of a Payment Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return Deficiency”),
then at the sole discretion of Agent and upon Agent’s written notice to such Lender, such Lender shall be deemed to have made a cashless assignment of the full face amount of the portion of its Loans (but not its Commitments) with respect to
which such Erroneous Payment was made (the “Erroneous Payment Impacted Loans”) to Agent or, at the option of Agent, Agent’s applicable lending affiliate (such assignee, the “Agent Assignee”)
in an amount that is equal to the Erroneous Payment Return Deficiency (or such lesser amount as Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Loans, the “Erroneous Payment
Deficiency Assignment”) plus any accrued and unpaid interest on such assigned amount, without further consent or approval of any party hereto and without any payment by Agent Assignee as the assignee of such Erroneous Payment
Deficiency Assignment. Without limitation of its rights hereunder, following the effectiveness of the Erroneous Payment Deficiency Assignment, Agent may make a cashless reassignment to the applicable assigning Lender of any Erroneous Payment
Deficiency Assignment at any time by written notice to the applicable assigning Lender and upon such reassignment all of the Loans assigned pursuant to such Erroneous Payment Deficiency Assignment shall be reassigned to such Lender without any
requirement for payment or other consideration. The parties hereto acknowledge and agree that (1) any assignment contemplated in this clause (d) shall be made without any requirement for any payment or other consideration paid by the
applicable assignee or received by the assignor, (2) the provisions of this clause (d) shall govern in the event of any conflict with the terms and conditions of Section 13 and (3) Agent may reflect such assignments
in the Register without further consent or action by any other Person.
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(e) Each party hereto hereby agrees that
(x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such
Erroneous Payment (or portion thereof) for any reason, Agent (1) shall be subrogated to all the rights of such Payment Recipient and (2) is authorized to set off, net and apply any and all amounts at any time owing to such Payment
Recipient under any Loan Document, or otherwise payable or distributable by Agent to such Payment Recipient from any source, against any amount due to Agent under this Section 14.19 or under the
indemnification provisions of this Agreement,
(y) the receipt of an Erroneous Payment by a Payment Recipient shall not for
the purpose of this Agreement be treated as a payment, prepayment, repayment, discharge or other satisfaction of any Obligations owed by the Borrowers or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely
with respect to the amount of such Erroneous Payment that is, comprised of funds received by Agent from the Borrowers or any other Loan Party for the purpose of making for a payment on the Obligations and
(z) to the extent that an Erroneous Payment was in any way or at any time credited as payment or satisfaction of any of the
Obligations, the Obligations or any part thereof that were so credited, and all rights of the Payment Recipient, as the case may be, shall be reinstated and continue in full force and effect as if such payment or satisfaction had never been
received.
(f) Each party’s obligations under this Section 14.19 shall survive the
resignation or replacement of Agent or any transfer of right or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any
Loan Document.
(g) The provisions of this Section 14.19 to the contrary notwithstanding,
(i) nothing in this Section 14.19 will constitute a waiver or release of any claim of any party hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment and
(ii) there will only be deemed to be a recovery of the Erroneous Payment to the extent that Agent has received payment from the Payment Recipient in immediately available funds the Erroneous Payment Return Deficiency, whether directly from the
Payment Recipient, as a result of the exercise by Agent of its rights of subrogation or set off as set forth above in clause (e) or as a result of the receipt by Agent Assignee of a payment of the outstanding principal balance of
the Loans assigned to Agent Assignee pursuant to an Erroneous Payment Deficiency Assignment, but excluding any other amounts in respect thereof (it being agreed that any payments of interest, fees, expenses or other amounts (other than principal)
received by Agent Assignee in respect of the Loans assigned to Agent Assignee pursuant to an Erroneous Payment Deficiency Assignment shall be the sole property of Agent Assignee and shall not constitute a recovery of the Erroneous Payment).
14.20 Agent Professionals. The Agent may perform its duties through agents and employees. The Agent may consult with and
employ such “Agent Professionals”, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by an Agent Professional. The Agent shall not be
responsible for the negligence or misconduct of any agents, employees or Agent Professionals selected by it with reasonable care.
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14.21 Collateral Agent. Notwithstanding anything contained in this
Agreement or any other Loan Document to the contrary, all determinations under this Agreement and the other Loan Documents related, directly or indirectly, to the Collateral, Borrowing Base eligibility standards or criteria, reserves or the
implementation or adjustment of reserves, collateral information rights, access rights, appraisal rights, audit rights, cash management and cash dominion rights and control agreement rights (including, for the avoidance of doubt, any such
determinations which are assigned to the Agent pursuant to this Agreement and other Loan Documents) shall, be made by the Agent. Any of the foregoing to the contrary notwithstanding, nothing contained in this
Section 14.21 shall be deemed to expand the rights of Agent or any Lender with respect to Borrowing Base eligibility standards or advance rates applicable to the Borrowing Base or reserves.
15. [RESERVED].
16. GENERAL
PROVISIONS.
16.1 Effectiveness. This Agreement shall be binding and deemed effective when executed by
Holdings, the Borrowers, each other Loan Party, Agent, and each Lender whose signature is provided for on the signature pages hereof and Agent shall have received counterparts of each such signature page.
16.2 Section Headings. Headings and numbers have been set forth herein for convenience only. Unless the contrary is
compelled by the context, everything contained in each Section applies equally to this entire Agreement.
16.3
Interpretation. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against the Lender Group, Holdings or any Loan Party, whether under any rule of construction or otherwise. On the contrary, this
Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto.
16.4 Severability of Provisions. Each provision of this Agreement shall be severable from every other provision of this
Agreement for the purpose of determining the legal enforceability of any specific provision.
16.5 Bank Product
Providers. Each Bank Product Provider in its capacity as such shall be deemed a third party beneficiary hereof and of the provisions of the other Loan Documents for purposes of any reference in a Loan Document to the parties for whom Agent
is acting. Agent hereby agrees to act as agent for such Bank Product Providers and, by virtue of entering into a Bank Product Agreement, the applicable Bank Product Provider shall be automatically deemed to have appointed Agent as its agent and to
have accepted the benefits of the Loan Documents. It is understood and agreed that the rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively of such Bank Product Provider’s being a beneficiary of the
Liens and security interests (and, if applicable, guarantees) granted to Agent and the right to share in payments and collections out of the Collateral as more fully set forth herein. In addition, each Bank Product Provider, by virtue of entering
into a Bank Product Agreement, shall be automatically deemed to have agreed that Agent shall have the right, but shall have no obligation, to establish, maintain, relax, or release reserves in respect of the Bank Product Obligations and that if
reserves are established there is no obligation on the part of Agent to determine or insure whether the amount of any such reserve is appropriate or not. In connection with any such distribution of payments or proceeds of Collateral, Agent shall be
entitled to assume no amounts are due or owing to any Bank Product Provider unless such Bank Product Provider has provided a written certification (setting forth a reasonably detailed calculation) to Agent as to the amounts that are due and owing to
it and such written certification is received by Agent a reasonable period of time prior to the making of such distribution. Agent shall have no obligation to calculate the amount due and payable with respect to any Bank Products, but may rely upon
the written certification of the amount due and payable from the applicable Bank Product Provider. In the
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absence of an updated certification, Agent shall be entitled to assume that the amount due and payable to the applicable Bank Product Provider is the amount last certified to Agent by such Bank
Product Provider as being due and payable (less any distributions made to such Bank Product Provider on account thereof). Borrowers may obtain Bank Products from any Bank Product Provider, although Borrowers are not required to do so. Each Borrower
acknowledges and agrees that no Bank Product Provider has committed to provide any Bank Products (unless otherwise agreed separate from this Agreement) and, unless otherwise agreed separate from this Agreement, that the providing of Bank Products by
any Bank Product Provider is in the sole and absolute discretion of such Bank Product Provider. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Product shall have any voting or
approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other
than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or Guarantors.
16.6 Debtor-Creditor Relationship. The relationship between the Lenders and Agent, on the one hand, and the Loan Parties,
on the other hand, is solely that of creditor and debtor. No member of the Lender Group has (or shall be deemed to have) any fiduciary relationship or duty to any Loan Party arising out of or in connection with the Loan Documents or the transactions
contemplated thereby, and there is no agency or joint venture relationship between the members of the Lender Group, on the one hand, and the Loan Parties, on the other hand, by virtue of any Loan Document or any transaction contemplated therein.
16.7 Counterparts; Electronic Execution.
(a) This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when
executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic method of
transmission shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission also shall
deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each other Loan
Document and any notice delivered hereunder or thereunder, mutatis mutandis.
(b) Electronic Execution. The words
“execute,” “execution,” “signed,” “signature,” “delivery” and words of like import in or related to this Agreement, any other Loan Document or any document, amendment, approval, consent,
waiver, modification, information, notice, certificate, report, statement, disclosure, or authorization to be signed or delivered in connection with this Agreement or any other Loan Document or the transactions contemplated hereby shall be deemed to
include Electronic Signatures or execution in the form of an Electronic Record, and contract formations on electronic platforms approved by the Agent, deliveries or the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global
and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Each party hereto agrees that any Electronic Signature or execution in the
form of an Electronic Record shall be valid and binding on itself and each of the other parties hereto to the same extent as a manual, original signature. For the avoidance of doubt, the authorization under this paragraph may include, without
limitation, use or acceptance by the parties of a manually signed paper which has been converted into electronic form (such as scanned into PDF format), or an electronically signed paper converted into another format, for transmission, delivery
and/or retention. Notwithstanding anything contained herein to the contrary, the Agent is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by the Agent pursuant to procedures approved
by it; provided that without limiting the foregoing,
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(i) to the extent the Agent has agreed to accept such Electronic Signature
from any party hereto, the Agent and the other parties hereto shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of the executing party without further verification and
(ii) upon the request of the Agent or any Lender, any Electronic Signature shall be promptly followed by an original manually
executed counterpart thereof.
Without limiting the generality of the foregoing, each party hereto hereby
(A) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of
remedies, bankruptcy proceedings or litigation among the Agent, the Lenders and any of the Loan Parties, electronic images of this Agreement or any other Loan Document (in each case, including with respect to any signature pages thereto) shall
have the same legal effect, validity and enforceability as any paper original, and
(B) waives any argument, defense or
right to contest the validity or enforceability of the Loan Documents based solely on the lack of paper original copies of any Loan Documents, including with respect to any signature pages thereto.
16.8 Revival and Reinstatement of Obligations; Certain Waivers.
(a) If any member of the Lender Group or any Bank Product Provider repays, refunds, restores, or returns in whole or in
part, any payment or property (including any proceeds of Collateral) previously paid or transferred to such member of the Lender Group or such Bank Product Provider in full or partial satisfaction of any Obligation
or on account of any other obligation of any Loan Party under any Loan Document or any Bank Product Agreement, because the payment, transfer, or the incurrence of the obligation so satisfied is asserted or declared to be
void, voidable, or otherwise recoverable under any law relating to creditors’ rights, including provisions of the Bankruptcy Code and any other Debtor Relief Law relating to fraudulent transfers, preferences, or other voidable or
recoverable obligations or transfers (each, a “Voidable Transfer”), or because such member of the Lender Group or Bank Product Provider elects to do so on the reasonable advice of its counsel in connection
with a claim that the payment, transfer, or incurrence is or may be a Voidable Transfer, then, as to any such Voidable Transfer, or the amount thereof that such member of the Lender Group or Bank Product Provider elects to repay,
restore, or return (including pursuant to a settlement of any claim in respect thereof), and as to all reasonable costs, expenses, and attorneys’ fees of such member of the Lender Group or Bank Product Provider related thereto,
(i) the liability of the Loan Parties with respect to the amount or property paid, refunded, restored, or returned will
automatically and immediately be revived, reinstated, and restored and will exist, and
(ii) Agent’s
Liens securing such liability shall be effective, revived, and remain in full force and effect, in each case, as fully as if such Voidable Transfer had never been made.
If, prior to any of the foregoing, (A) Agent’s Liens shall have been released or terminated, or (B) any provision of this Agreement shall have
been terminated or cancelled, Agent’s Liens, or such provision of this Agreement, shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge,
impair or otherwise affect the obligation of any Loan Party in respect of such liability or any Collateral securing such liability. This provision shall survive the termination of this Agreement and the repayment in full of the
Obligations.
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16.9 Confidentiality.
(a) Agent and Lenders each individually (and not jointly or jointly and severally) agree that material,
non-public information regarding Holdings and its Subsidiaries, their operations, assets, and existing and contemplated business plans provided by or on behalf of Holdings or any of its Subsidiaries under or
in connection with this Agreement or any other Loan Document (collectively, “Confidential Information”) shall be treated by Agent and the Lenders in a confidential manner, and shall not be disclosed by Agent and the Lenders
to Persons who are not parties to this Agreement, except:
(i) to attorneys for and other advisors, accountants, auditors,
consultants, agents, representatives, counselors, credit risk insurance providers, reinsurers and brokers to any member of the Lender Group and to employees, directors and officers of any member of the Lender Group (the Persons in this clause
(i), “Lender Group Representatives”) on a “need to know” basis in connection with this Agreement and the transactions contemplated hereby and on a confidential basis,
(ii) to Subsidiaries and Affiliates of any member of the Lender Group (including the Bank Product Providers);
provided, that any such Subsidiary or Affiliate shall have agreed to receive such information hereunder subject to the terms of this Section 16.9,
(iii) as may be required by regulatory authorities so long as such authorities are informed of the confidential nature of such
information,
(iv) as may be required by statute, decision, or judicial or administrative order, rule, or regulation;
provided, that (x) prior to any disclosure under this clause (iv), the disclosing party agrees to provide Par Borrower with prior notice thereof, to the extent that it is practicable to do so and to the extent that
the disclosing party is permitted to provide such prior notice to Par Borrower pursuant to the terms of the applicable statute, decision, or judicial or administrative order, rule, or regulation and (y) any disclosure under this clause
(iv) shall be limited to the portion of the Confidential Information as may be required by such statute, decision, or judicial or administrative order, rule, or regulation,
(v) as may be agreed to in advance in writing by Borrower,
(vi) as requested or required by any Governmental Authority pursuant to any subpoena or other legal process;
provided, that (x) prior to any disclosure under this clause (vi) the disclosing party agrees to provide Par Borrower with prior written notice thereof, to the extent that it is practicable to do so and to the
extent that the disclosing party is permitted to provide such prior written notice to Par Borrower pursuant to the terms of the subpoena or other legal process and (y) any disclosure under this clause (vi) shall be limited to
the portion of the Confidential Information as may be required by such Governmental Authority pursuant to such subpoena or other legal process,
(vii) as to any such information that is or becomes generally available to the public (other than as a result of prohibited
disclosure by Agent or the Lenders or the Lender Group Representatives),
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(viii) in connection with any assignment, participation or pledge of any
Lender’s interest under this Agreement; provided, that this clause (viii) shall not permit disclosure to any Disqualified Institution and prior to receipt of Confidential Information any such assignee,
participant, or pledgee shall have agreed in writing to receive such Confidential Information either subject to the terms of this Section 16.9 or pursuant to confidentiality requirements substantially
similar to those contained in this Section 16.9 (and such Person may disclose such Confidential Information to Persons employed or engaged by them as described in clause
(i) above),
(ix) in connection with any litigation or other adversary proceeding
involving parties hereto which such litigation or adversary proceeding involves claims related to the rights or duties of such parties under this Agreement or the other Loan Documents; provided, that prior to any disclosure to any
Person (other than Holdings, any Loan Party, Agent, any Lender, any of their respective Affiliates, or their respective counsel) under this clause (ix) with respect to litigation involving any Person (other than Holdings, any
Borrower, Agent, any Lender, any of their respective Affiliates, or their respective counsel), the disclosing party agrees to provide Borrower with prior written notice thereof, and
(x) in connection with, and to the extent reasonably necessary for, the exercise of any secured creditor remedy under this
Agreement or under any other Loan Document.
(b) Anything in this Agreement to the contrary notwithstanding, Agent may disclose information
concerning the terms and conditions of this Agreement and the other Loan Documents to loan syndication and pricing reporting services or in its marketing or promotional materials, with such information to consist of deal terms and other information
customarily found in such publications or marketing or promotional materials and may otherwise use the name, logos, and other insignia of Holdings, any Borrower or the other Loan Parties and the Commitments provided hereunder in any
“tombstone” or other advertisements, on its website or in other marketing materials of the Agent.
(c) Holdings and each Loan
Party agrees that Agent may make Borrower Materials available to the Lenders by posting the Borrower Materials on IntraLinks, SyndTrak or a substantially similar secure electronic transmission system (the “Platform”). The
Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of the Borrower Materials, or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the
communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights
or freedom from viruses or other code defects, is made by Agent in connection with the Borrower Materials or the Platform. In no event shall Agent or any of the Agent-Related Persons have any liability to Holdings, the Loan Parties, any Lender or
any other person for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of Holdings’, any Loan Party’s or Agent’s
transmission of communications through the Internet, except to the extent the liability of such person is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from
such person’s gross negligence or willful misconduct. Holdings and each Loan Party further agrees that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”). Holdings and the Loan Parties shall be deemed to have authorized Agent and its
Affiliates and the Lenders to treat Borrower Materials marked “PUBLIC” or otherwise at any time filed with the SEC as not containing any material non-public information with respect
to the Loan Parties or their securities for purposes of United States federal and state securities laws. All Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated
as “Public Investor” (or another similar term), and any Borrower Materials not so marked shall not be made available to any Public Lender. Agent and its Affiliates and the Lenders may be entitled to treat any Borrower
Materials that are not marked “PUBLIC” or that are not at any time filed with the SEC as being suitable only for posting on a portion of the Platform not marked as “Public Investor” (or such other
similar term).
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16.10 Survival. All representations and warranties made by Holdings and
the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that Agent, Issuing
Bank, or any Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of, or
any accrued interest on, any Loan or any fee or any other amount payable under this Agreement is outstanding or unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or been terminated.
16.11 Patriot Act; Due Diligence. The Agent and each Lender that is subject to the requirements of the Patriot Act and the
Beneficial Ownership Regulation hereby notifies Holdings and the Loan Parties that pursuant to the requirements of the Patriot Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies
Holdings and each Loan Party, which information includes the name and address of Holdings each Loan Party and other information that will allow the Agent or such Lender to identify each such Person in accordance with the Patriot Act and the
Beneficial Ownership Regulation. In addition, Agent and each Lender shall have the right to periodically conduct due diligence on Holdings, all Loan Parties, their respective senior management and key principals and legal and beneficial owners.
Holdings and each Loan Party agrees to cooperate in respect of the conduct of such due diligence and further agrees that the reasonable costs and charges for any such due diligence by Agent shall constitute Lender Group Expenses hereunder and be for
the account of the Borrowers.
16.12 Integration. This Agreement, together with the other Loan Documents, reflects the
entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof. The foregoing to the contrary notwithstanding, all
Bank Product Agreements, if any, are independent agreements governed by the written provisions of such Bank Product Agreements, which will remain in full force and effect, unaffected by any repayment, prepayments, acceleration, reduction, increase,
or change in the terms of any credit extended hereunder, except as otherwise expressly provided in such Bank Product Agreement.
16.13 Release of Guarantors and Collateral.
(a) The Lien on any Collateral will be automatically released upon any of the occurrence of any of the circumstances set forth in
Section 14.11(a)(i) to (v) and (vii) to (viii). The Agent shall concurrently with such release (to the extent the Par Borrower has delivered to the Agent
notice thereof at least three Business Days prior to such release, and if such notice was not delivered in such time frame, within three Business Days after such notice was delivered) execute and deliver such acknowledgments, releases and
terminations as the Par Borrower may reasonably request in connection with any such release.
(b) Any Guarantor will automatically be
released from its Guarantee of the Obligations upon the occurrence of any of the circumstances set forth in Section 14.11(b). The Agent shall concurrently with such release (to the extent the Par
Borrower has delivered to the Agent notice thereof at least three Business Days prior to such release, and if such notice was not delivered in such time frame, within three Business Days after such notice was delivered) execute and deliver such
acknowledgments, releases and terminations as the Par Borrower may reasonably request in connection with any such release.
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16.14 Acknowledgement and Consent to
Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party
hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority
and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the
applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected
Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any
such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in
connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
16.15 Certain
ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and
(y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the
avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of 29 CFR §
2510.3-101, as modified by Section 3(42) of ERISA) of one or more ERISA Plans in connection with the Loans or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a
class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts),
PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions
involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect
to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager”
(within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the
Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of
sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE
84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
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(iv) such other representation, warranty and covenant as may be agreed in
writing between the Agent, in its sole discretion, and such Lender.
(b) In addition, unless
sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date
such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the
benefit of the Borrower or any other Loan Party, that:
(i) none of the Agent or any Joint Lead Arranger or any of their
respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related to hereto or
thereto),
(ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into,
participation in, administration of and performance of the Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an
investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
(iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation
in, administration of and performance of the Loans, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in
respect of the Obligations),
(iv) the Person making the investment decision on behalf of such Lender with respect to the
entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is a fiduciary under ERISA or the IRC, or both, with respect to the Loans, the Commitments and this Agreement and is responsible for
exercising independent judgment in evaluating the transactions hereunder, and
(v) no fee or other compensation is being
paid directly to the Agent or the Joint Lead Arrangers or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Commitments or this Agreement.
(c) The Agent and each Joint Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment
advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof
(i) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest
in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection
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with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking
fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s
acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
16.16 Permitted Intercreditor
Agreements.
(a) Each of the Lenders acknowledges that obligations of the Borrower and the Guarantors under any Incremental
Equivalent Debt, any Priority Fixed Debt, any other Permitted Indebtedness secured by a Permitted Lien and any Refinancing Indebtedness in respect of the foregoing may be secured by Liens on assets of the Borrower and the Guarantors that constitute
Collateral and that the obligations of the Borrower and the Guarantors under the Loan Documents may be secured by liens on the Collateral. Each of the Lenders hereby irrevocably authorizes and directs (and by entering into a Bank Product Agreement,
each Bank Product Provider shall be deemed to irrevocable authorize and direct) the Agent to execute and deliver, in each case on behalf of such Lender (and Bank Product Provider) and without any further consent, authorization or other action by
such Lender (or Bank Product Provider),
(i) from time to time upon the request of the Borrower, in connection with the
establishment, incurrence, amendment, refinancing or replacement of any such Indebtedness or any other Indebtedness, any applicable Intercreditor Agreement (it being understood that the Agent is hereby authorized and directed to determine the terms
and conditions of any such Intercreditor Agreement as contemplated by the definition of “Intercreditor Agreement”), and
(ii) any documents relating thereto.
(b) Each of the Lenders acknowledges (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge)
that obligations under Intermediation Facilities of the Par Borrower or any of its Subsidiaries that is party to an Intermediation Facility may be secured by Liens on Intermediation Collateral owned by the Par Borrower or any of such Subsidiaries
and that counterparties to Intermediation Facilities may need to access the Collateral in order to obtain and utilize its Intermediation Collateral or other assets located on the Collateral. Each of the Lenders hereby irrevocably authorizes and
directs (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize and direct) the Agent to execute and deliver, in each case on behalf of such Lender (or Bank Product Provider) and without any further
consent, authorization or other action by such Lender (or Bank Product Provider), from time to time upon the request of Par Borrower, in connection with any Intermediation Facility, any applicable Intercreditor Agreement. The Lenders hereby ratify
(and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to ratify) Agent’s entry from time to time into the Intercreditor Agreements.
(c) Each of the Lenders hereby irrevocably (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to)
(i) consents to the treatment of Liens and any access rights to be provided for under the Intercreditor Agreements,
(ii) consents to the access of the Intermediation Facility counterparties to the Collateral in accordance with the applicable
intermediation access or acknowledgment agreement,
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(iii) agrees that, upon the execution and delivery thereof, such Lender will
be bound by the provisions of any Intercreditor Agreement as if it were a signatory thereto and will take no actions contrary to the provisions of any Intercreditor Agreement,
(iv) agrees that no Lender shall have any right of action whatsoever against the Agent as a result of any action taken by the
Agent pursuant to this Section or in accordance with the terms of any Intercreditor Agreement and
(v) authorizes and
directs the Agent to carry out the provisions and intent of each such document.
(d) Each of the Lenders hereby irrevocably further
authorizes and directs (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to irrevocably further authorize and direct) the Agent to execute and deliver, in each case on behalf of such Lender (or Bank Product
Provider) and without any further consent, authorization or other action by such Lender (or Bank Product Provider), any amendments, amendments and restatements, supplements or other modifications of any Intercreditor Agreement that the
Borrower may from time to time request
(i) to give effect to any establishment, incurrence, amendment, extension, renewal,
refinancing or replacement of any Priority Fixed Debt, Incremental Equivalent Debt, any other Indebtedness or any Intermediation Facility, as applicable, or
(ii) to confirm for any party that such Intercreditor Agreement is effective and binding upon the Agent on behalf of the
Lenders and the Bank Product Providers.
(e) Each of the Lenders hereby irrevocably further authorizes and directs (and by entering into a
Bank Product Agreement, each Bank Product Provider shall be deemed to irrevocably further authorize and direct) the Agent to execute and deliver, in each case on behalf of such Lender (or Bank Product Provider) and without any further consent,
authorization or other action by such Lender (or Bank Product Provider), any amendments, supplements or other modifications of any Loan Document to add or remove any legend that may be required pursuant to any Intercreditor Agreement.
The Agent shall have the benefit of the provisions of Section 14 with respect to all actions
taken by it pursuant to this Section or in accordance with the terms of any Intercreditor Agreement to the full extent thereof.
16.17 The Administrative Borrower.
Each Borrower hereby irrevocably appoints Par Borrower as the borrowing agent and attorney-in-fact for all Borrowers (the “Administrative Borrower”) which appointment shall remain in full force and effect unless and until Agent shall have received prior written
notice signed by each Borrower that such appointment has been revoked and that another Borrower has been appointed Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes Administrative Borrower
(a) to provide Agent with all notices with respect to Revolving Loans and Letters of Credit obtained for the benefit of any Borrower and all
other notices and instructions under this Agreement and the other Loan Documents (and any notice or instruction provided by Administrative Borrower shall be deemed to be given by Borrowers hereunder and shall bind each Borrower),
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(b) to receive notices and instructions from members of the Lender Group (and any notice or
instruction provided by any member of the Lender Group to Administrative Borrower in accordance with the terms hereof shall be deemed to have been given to each Borrower),
(c) to enter into Bank Product Provider Agreements on behalf of Borrowers and their Subsidiaries, and
(d) to take such action as Administrative Borrower deems appropriate on its behalf to obtain Revolving Loans and Letters of Credit and to
exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement.
It is understood that the handling of the
Loan Account and Collateral in a combined fashion, as more fully set forth herein, is done solely as an accommodation to Borrowers in order to utilize the collective borrowing powers of Borrowers in the most efficient and economical manner and at
their request, and that Lender Group shall not incur liability to any Borrower as a result hereof. Each Borrower expects to derive benefit, directly or indirectly, from the handling of the Loan Account and the Collateral in a combined fashion since
the successful operation of each Borrower is dependent on the continued successful performance of the integrated group. To induce the Lender Group to do so, and in consideration thereof, each Borrower hereby jointly and severally agrees to indemnify
each member of the Lender Group and hold each member of the Lender Group harmless against any and all liability, expense, loss or claim of damage or injury (other than Taxes, which shall be governed by
Section 2.18), made against the Lender Group by any Borrower or by any third party whosoever, arising from or incurred by reason of (i) the handling of the Loan Account and Collateral of Borrowers
as herein provided, or (ii) the Lender Group’s relying on any instructions of Administrative Borrower, except that Borrowers will have no liability to the relevant Agent-Related Person or Lender-Related Person under this
Section 16.17 with respect to any liability that has been finally determined by a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of such
Agent-Related Person or Lender-Related Person, as the case may be.
(e) Execution of Loan Documents. The Borrowers hereby
empower and authorize the Administrative Borrower, on behalf of the Borrowers, to execute and deliver to the Agent and the Lenders the Loan Documents and all related agreements, certificates, notices, consents, documents or instruments as shall be
necessary or appropriate to effect the purposes of the Loan Documents. Each Borrower agrees that any action taken by the Administrative Borrower or the Borrowers in accordance with the terms of this Agreement or the other Loan Documents, and the
exercise by the Administrative Borrower of its powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Borrowers.
16.18 Acknowledgment Regarding Any Support QFCs. To the extent that the Loan Documents provide support,
through a guarantee or otherwise, for Hedge Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and, each such QFC, a “Supported QFC”), the parties
acknowledge and agree as follows with respect to the resolution power of the FDIC under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated
thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be
stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
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(a) In the event a Covered Entity that is party to a Supported QFC (each, a
“Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such
Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special
Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act
Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against
such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or
a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a
Supported QFC or any QFC Credit Support.
(b) As used in this Section 16.18, the following
terms have the following meanings:
(i) “BHC Act Affiliate” of a party means an
“affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
(ii) “Covered Entity” means any of the following:
(A) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(B) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b);
or
(C) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
382.2(b).
(iii) “Default Right” has the meaning assigned to that term in, and shall be
interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(iv)
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
16.19 Amendment and Restatement. This Agreement constitutes an amendment and restatement of the Existing Agreement. This
Agreement is not intended to, and shall not, constitute a novation of any obligations or liabilities of any Loan Party or Holdings under the Existing Agreement or any of the Loan Documents. All Obligations of the Loan Parties outstanding under the
Existing Agreement as of the Closing Date shall continue as Obligations under this Agreement, and the execution and delivery of this Agreement shall not in any way extinguish, reduce, or discharge any such Obligations.
[Signature pages to follow]
215
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and
delivered as of the date first above written.
BORROWERS:
PAR PETROLEUM, LLC
PAR HAWAII,
LLC
HERMES CONSOLIDATED, LLC
WYOMING PIPELINE COMPANY LLC
PAR MONTANA, LLC
PAR ROCKY MOUNTAIN MIDSTREAM, LLC
U.S. OIL & REFINING CO.
PAR HAWAII REFINING,
LLC
By:
/s/ Shawn Flores
Name:
Shawn Flores
Title:
Chief Financial Officer
HOLDINGS:
PAR PACIFIC HOLDINGS, INC.
By:
/s/ Shawn Flores
Name:
Shawn Flores
Title:
Senior Vice President and Chief Financial Officer
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, as Agent
By:
/s/ Layne Deutscher
Name:
Layne Deutscher
Executive Director
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By:
/s/ Layne Deutscher
Name:
Layne Deutscher
Title:
Executive Director
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
Bank of America, N.A.,
as a
Lender
By:
/s/ Tyler Sims
Name:
Tyler Sims
Title:
Senior Vice President
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
MUFG Bank, LTD,
as a
Lender
By:
/s/ Robert Grbic
Name:
Robert Grbic
Title:
Vice President
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
REGIONS BANK,
as a
Lender
By:
/s/ Caroline Colberg
Name:
Caroline Colberg
Title:
Vice President
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
Truist Bank
as a
Lender
By:
/s/ Darnell McCray
Name:
Darnell McCray
Title:
Director
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By:
/s/ Ryan Bannan
Name:
Ryan Bannan
Title:
Vice President
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
The Bank of Nova Scotia, Houston Branch,
as a Lender
By:
/s/ Priyanka MacRae
Name:
Priyanka MacRae
Title:
Director
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
Citibank, N.A.,
as a
Lender
By:
/s/ Michelle Pratt
Name:
Michelle Pratt
Title:
Vice President
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
BARCLAYS BANK PLC,
as a
Lender
By:
/s/ Sydney G. Dennis
Name:
Sydney G. Dennis
Title:
Director
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
GOLDMAN SACHS BANK USA,
as a
Lender
By:
/s/ Rebecca Kratz
Name:
Rebecca Kratz
Title:
Authorized Signatory
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
American Savings Bank, National Association
as a Lender
By:
/s/ Randy Lu
Name:
Randy Lu
Title:
Senior Vice President
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
First Hawaiian Bank,
as a
Lender
By:
/s/ Charles C. Barbata
Name:
Charles C. Barbata
Title:
Senior Vice President
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
Bank of Hawaii,
as a
Lender
By:
/s/ Bryson Chang
Name:
Bryson Chang
Title:
Vice President
Signature Page to Amended
and Restated Asset-Based Revolving Credit Agreement
EX-99.1
EX-99.1
Filename: d176382dex991.htm · Sequence: 4
EX-99.1
Exhibit 99.1
Par Pacific Announces Closing of Private Placement of $500 Million of Senior Notes and Increase and
Extension of ABL
HOUSTON, May 14, 2026 – Par Pacific Holdings, Inc. (NYSE and NYSE Texas: PARR) (“Par
Pacific” or the “Company”) announced today that Par Petroleum, LLC, a wholly owned subsidiary of Par Pacific (“Par Petroleum”), closed its private placement (the “Offering”) pursuant to Rule 144A and
Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), of $500 million in aggregate principal amount of 7.375% senior unsecured notes due 2034 (the “Notes”). The Company also announced the
increase in lender commitments under its senior secured asset-based revolving credit facility (the “ABL Credit Facility”) to up to $1.8 billion and the extension of the maturity date thereof to 2031.
The Company used the net proceeds from the Offering, together with cash on hand and borrowings under the ABL Credit Facility, to repay all of the aggregate
principal balance under and terminate Par Petroleum’s term loan due 2030.
The offer and sale of the Notes and the related guarantees have not been
registered under the Securities Act, or any state securities laws, and unless so registered, these securities may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and applicable state securities laws. These securities were offered and sold only to persons reasonably believed to be qualified institutional buyers pursuant to Rule 144A under the Securities Act and to non-U.S. persons outside the United States pursuant to Regulation S under the Securities Act.
This news release shall
not constitute an offer to sell, or the solicitation of an offer to buy, any of these securities or any other securities, nor shall there be any sale of these securities or any other securities in any state or jurisdiction in which such offer,
solicitation or sale would be unlawful.
About Par Pacific
Par Pacific Holdings, Inc. (NYSE and NYSE Texas: PARR), headquartered in Houston, Texas, is a growing energy company providing both renewable
and conventional fuels to the western United States. Par Pacific owns and operates 219,000 bpd of combined refining capacity across four locations in Hawaii, the Pacific Northwest and the Rockies, and an extensive energy
infrastructure network, including 13 million barrels of storage, and marine, rail, rack, and pipeline assets. In addition, Par Pacific operates the Hele retail brand in Hawaii and the “nomnom” convenience store
chain in the Pacific Northwest. Par Pacific also owns 46% of Laramie Energy, LLC, a natural gas production company with operations and assets concentrated in Western Colorado.
Investor Contact:
Ashimi Patel Vitter
VP, Investor Relations &
Sustainability
(832) 916-3355
apatel@parpacific.com
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Document and Entity Information
May 14, 2026
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