AMENDED AND RESTATED SENIOR SECURED REVOLVING CREDIT AGREEMENT

 

dated as of August 23, 2023

 

among

 

PBF HOLDING COMPANY LLC,

DELAWARE CITY REFINING COMPANY LLC,

PAULSBORO REFINING COMPANY LLC,

TOLEDO REFINING COMPANY LLC,

CHALMETTE REFINING, L.L.C.,

TORRANCE REFINING COMPANY LLC, and

MARTINEZ REFINING COMPANY LLC,

as Borrowers,

and

 

THE OTHER LOAN PARTIES PARTY HERETO,

as Loan Parties,

 

THE LENDERS PARTY HERETO,

 

BANK OF AMERICA, N.A.,

as Administrative Agent, Collateral Agent, and as Swingline Lender,

 

BANK OF AMERICA, N.A.,

CITIBANK, N.A.,

MUFG BANK, LTD.,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

NYCB SPECIALTY FINANCE COMPANY, LLC,

BANK OZK,

BARCLAYS BANK PLC,

PNC BANK, NATIONAL ASSOCIATION,

REGIONS BANK,

SUMITOMO MITSUI BANKING CORPORATION, and

TRUIST SECURITIES, INC.,

as Joint Lead Arrangers and Joint Bookrunners

GOLDMAN SACHS BANK USA, and

U.S. BANK NATIONAL ASSOCIATION,

as Joint Bookrunners,

 

and

 

COOPERATIVE RABOBANK U.A., NEW YORK BRANCH,

FIFTH THIRD BANK,

HSBC BANK USA, NATIONAL ASSOCIATION,

KEYBANK NATIONAL ASSOCIATION,

M&T BANK, and

THE BANK OF NOVA SCOTIA,

as Co-Documentation Agents

Winston & Strawn LLP

200 Park Avenue

New York, NY 10166

 

			Page
	Section 3.17	Employee Benefit Plans.	97
	Section 3.18	Environmental Matters.	97
	Section 3.19	Insurance.	99
	Section 3.20	Security Documents.	99
	Section 3.21	Anti-Terrorism Laws.	100
	Section 3.22	Location of Material Inventory.	100
	Section 3.23	Accuracy of Borrowing Base.	100
Article IV CONDITIONS TO CREDIT EXTENSIONS			101
	Section 4.01	Conditions to Effectiveness and Initial Credit Extension.	101
	Section 4.02	Conditions to All Credit Extensions.	102
	Section 4.03	Conditions to Initial Credit Extension to an Eligible Subsidiary.	103
Article V AFFIRMATIVE COVENANTS			104
	Section 5.01	Financial Statements, Reports, etc.	104
	Section 5.02	Litigation and Other Notices.	106
	Section 5.03	Existence; Businesses and Properties.	107
	Section 5.04	Insurance.	108
	Section 5.05	Obligations and Taxes.	108
	Section 5.06	Employee Benefits.	109
	Section 5.07	Maintaining Records; Access to Properties and Inspections; Annual Meetings.	109
	Section 5.08	Use of Proceeds.	110
	Section 5.09	Compliance with Environmental Laws; Environmental Reports.	110
	Section 5.10	Additional Collateral; Additional Guarantors.	111
	Section 5.11	Security Interests; Further Assurances.	112
	Section 5.12	Information Regarding Collateral.	112
	Section 5.13	[Reserved].	112
	Section 5.14	Affirmative Covenants with Respect to Leases.	113
	Section 5.15	Borrowing Base-Related Reports.	113
	Section 5.16	Collateral Field Examinations.	114
	Section 5.17	[Reserved]	114
	Section 5.18	Designation of Borrowers and Excluded Subsidiaries.	114
Article VI NEGATIVE COVENANTS			115
	Section 6.01	Indebtedness.	115
	Section 6.02	Liens.	119
	Section 6.03	Sale and Leaseback Transactions.	123
	Section 6.04	Investment, Loan, Advances and Acquisition.	123
	Section 6.05	Mergers and Consolidations.	125
	Section 6.06	Asset Sales.	126
	Section 6.07	Dividends.	128
	Section 6.08	Transactions with Affiliates.	130
	Section 6.09	Financial Covenant.	131
	Section 6.10	Prepayments of Other Indebtedness; Modifications of Organizational Documents and Other Documents, etc.	132
	Section 6.11	Limitation on Certain Restrictions on Subsidiary Guarantors.	132
	Section 6.12	Business.	133
	Section 6.13	Fiscal Year.	133
	Section 6.14	Compliance with Anti-Terrorism Laws.	133

 

 

 

AMENDED AND RESTATED SENIOR SECURED REVOLVING CREDIT AGREEMENT

 

This AMENDED AND RESTATED SENIOR SECURED REVOLVING CREDIT AGREEMENT (this “Agreement”) dated as of August 23, 2023, among PBF Holding Company LLC, a Delaware limited liability company (“Holdings”), Delaware City Refining Company LLC, a Delaware limited liability company (“Delaware City”), Paulsboro Refining Company LLC, a Delaware limited liability company (“Paulsboro”), Toledo Refining Company LLC, a Delaware limited liability company (“Toledo”), Chalmette Refining, L.L.C., a Delaware limited liability company (“Chalmette”), and Torrance Refining Company LLC, a Delaware limited liability company (“Torrance”), Martinez Refining Company LLC, a Delaware limited liability company (“Martinez” and, together with Holdings, Delaware City, Paulsboro, Toledo, Chalmette and Torrance, “Borrowers” and each individually, a “Borrower”), the Subsidiary Guarantors (such term and each other capitalized term used but not defined herein having the meaning given to it in Article I), the Lenders and Bank of America, N.A., as an Issuing Bank, Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent (in such capacity, the “Collateral Agent”), and as Swingline Lender (in such capacity, the “Swingline Lender”).

 

WITNESSETH:

 

WHEREAS, Holdings, Delaware City, Paulsboro, Toledo, Chalmette, Torrance and Martinez, as Borrowers, are parties to that certain Senior Secured Revolving Credit Agreement, dated as of May 2, 2018 (the “Original Effective Date”) (as amended, supplemented or otherwise modified prior to the date hereof, the “Existing Revolving Credit Agreement”).

 

WHEREAS, the Borrowers wish to amend and restate, but not repay, the Existing Revolving Credit Agreement in its entirety and have requested that the Lenders amend and restate the Existing Revolving Credit Agreement on the terms set forth herein.

 

NOW, THEREFORE, the Lenders are willing to provide such credit facility to Borrowers and the Issuing Banks are willing to issue letters of credit for the account of Borrowers on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

Section 1.01         Defined Terms.

 

As used in this Agreement, the following terms shall have the meanings specified below:

 

“2028 Senior Notes” shall mean those certain 6.00% Senior Notes due 2028 issued January 24, 2020, by Holdings and PBF Finance in an aggregate principal amount of $1,000,000,000.

 

“2030 Senior Notes” shall mean those certain 7.875% Senior Notes due 2030 issued August 21, 2023, by Holdings and PBF Finance in an aggregate principal amount of $500,000,000.

 

“ABR”, when used in reference to any Loan or Borrowing, is used when such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

 

“ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.

 

“ABR Loan” shall mean any ABR Revolving Loan.

 

“ABR Revolving Loan” shall mean any Revolving Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.

 

“Accepting Lenders” shall have the meaning provided in Section 10.19(a).

 

“Account Debtor” shall mean any person who may become obligated to another person under, with respect to, or on account of, an Account.

 

“Accounts” shall mean all “accounts,” as such term is defined in the UCC as in effect on the date hereof in the State of New York, in which such Person now or hereafter has rights.

 

“Accounts Availability” shall have the meaning set forth in the definition of “Borrowing Base”.

 

“Acquired EBITDA” shall mean, with respect to any Acquired Entity or Business or any Converted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business or Converted Subsidiary, as applicable, all as determined on a consolidated basis for such Acquired Entity or Business or Converted Subsidiary, as applicable.

 

“Acquired Entity or Business” has the meaning specified in the definition of the term “Consolidated EBITDA.”

 

“Acquisition Agreement” shall mean any purchase, merger, acquisition or other similar agreement for purposes of documenting a Permitted Acquisition or other Investment or acquisition not prohibited by this Agreement.

 

“Activation Notice” shall have the meaning assigned to such term in Section 2.22.

 

“Administrative Agent” shall have the meaning assigned to such term in the preamble hereto and includes each other person appointed as the successor pursuant to Article IX.

 

“Administrative Agent Fee” shall have the meaning assigned to such term in Section 2.05(b).

 

“Administrative Borrower” shall mean Holdings or any successor entity serving in that role pursuant to Section 2.03.

 

“Administrative Questionnaire” shall mean an Administrative Questionnaire in substantially the form of Exhibit A.

 

“Affected Financial Institution” shall mean any EEA Financial Institution or UK Financial Institution

 

“Affiliate” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified. In no event shall any Agent or Lender be deemed to be an Affiliate of any Borrower or any of its Subsidiaries.

 

“Agents” shall mean the Administrative Agent and the Collateral Agent; and “Agent” shall mean any of them.

 

“Agreement” shall have the meaning assigned to such term in the preamble hereto.

 

“Alternate Base Rate” shall mean, for any day, a fluctuating rate per annum equal to the greatest of (a) the Base Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 0.50% and (c) Term SOFR for an Interest Period of one-month beginning on such day (or if such day is not a Business Day, on the immediately preceding Business Day) plus 100 basis points. If the Administrative Agent shall have determined (which determination shall be prima facie evidence thereof absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Base Rate or the Federal Funds Effective Rate shall be effective on the effective date of such change in the Base Rate or the Federal Funds Effective Rate, respectively.

 

“Anti-Bribery Laws” shall mean the Foreign Corrupt Practices Act of 1977 (15 U.S.C. § 78dd-1, et seq.) and any other similar U.S. federal laws.

 

“Anti-Terrorism Laws” shall mean any Requirement of Law related to terrorism financing or money laundering including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“USA PATRIOT Act”) of 2001 (Title III of Pub. L. 107-56), The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) and Executive Order 13224 (effective September 24, 2001).

 

“Applicable Fee” shall mean, for any day, with respect to the aggregate Commitments, a per annum rate equal to (a) 0.375%, if the average daily Revolving Exposure for all Lenders was 20% or less of the Revolving Commitments of all Lenders during the preceding calendar quarter, or (b) 0.25% if the average daily Revolving Exposure for all Lenders was more than 20% of the Revolving Commitments of all Lenders during the preceding calendar quarter.

 

“Applicable Letter of Credit Fee” shall mean, for any day, with respect to the aggregate outstanding Letters of Credit, the applicable percentage set forth in Annex I under the appropriate caption.

 

“Applicable Margin” shall mean, for any day, with respect to any Revolving Loan the applicable percentage set forth in Annex I under the appropriate caption.

 

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

 

“Asset Sale” shall mean, in each case to the extent in excess of $60,000,000 in respect of a transaction or a series of related transactions: (a) any conveyance, sale, assignment, transfer or other disposition (including by way of merger or consolidation and including any Sale and Leaseback Transaction) of any property (but excluding in any event sales of inventory, transactions pursuant to the Off-Take Agreements and/or the Oil Supply Agreements, dispositions of cash and cash equivalents (including Cash Equivalents but excluding payments made in cash or Cash Equivalents to the extent such payments are not prohibited by the terms of this Agreement) and licenses of any Intellectual Property by Holdings or any of its Subsidiaries in the ordinary course of business) and (b) any issuance or sale of any Equity Interests of any Subsidiary of Holdings, in each case, to any person other than (x) Borrowers, (y) any Subsidiary Guarantor or (z) other than for purposes of Section 6.06, any other Subsidiary. For the avoidance of doubt, the granting of a Permitted Lien shall not constitute an “Asset Sale.” Notwithstanding the foregoing, “Asset Sale” shall not include the sale (A) in the ordinary course of business of (i) Accounts of non-Investment Grade foreign Account Debtors that are not Eligible Accounts, (ii) Accounts of Investment Grade foreign Account Debtors that are not Eligible Accounts and that have payment terms in excess of 10 days and (iii) Accounts of domestic Account Debtors that are not Eligible Accounts and which Account Debtors have been reasonably approved by, and upon prior written notice to, the Administrative Agent, in an aggregate amount for all such sales in any twelve month period not to exceed $25,000,000 and (B) of Designated Accounts Receivable; provided, that all sales of such Accounts under clauses (A)(i), (ii) and (iii) and clause (B) shall be structured as non-recourse, true sales and, in the case of sales under clause (B), such sales shall be permitted under Section 6.06(a)(ii). Upon Administrative Agent’s reasonable written request, from time to time, Administrative Borrower shall provide reporting in scope and detail reasonably acceptable to Administrative Agent regarding sales of Accounts under clauses (A)(i), (ii) and (iii) and clause (B) in the immediately preceding sentence.

 

“Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.04(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit B, or any other form approved by the Administrative Agent.

 

“Attributable Indebtedness” shall mean, when used with respect to any Sale and Leaseback Transaction, as at the time of determination, the present value (discounted at a rate equivalent to Holdings’ and its Subsidiaries’ then-current weighted average cost of funds for borrowed money as at the time of determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental payments during the remaining term of the lease included in any such Sale and Leaseback Transaction.

 

“Auto-Renewal Letter of Credit” shall have the meaning assigned to such term in Section 2.18(c)(iii).

 

“Bail-In Action” shall mean 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” shall mean, with respect to (a) 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, or (b) the United Kingdom, Part I of the United Kingdom Banking Act 2009 and any other law 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).

 

“Base Rate” shall mean, for any day, a rate per annum that is equal to the corporate base rate of interest established by the Administrative Agent from time to time; each change in the Base Rate shall be effective on the date such change is effective. The corporate base rate is not necessarily the lowest rate charged by the Administrative Agent to its customers.

 

“Blocked Accounts” shall have the meaning assigned to such term in Section 2.22.

 

“Board” shall mean the Board of Governors of the Federal Reserve System of the United States.

 

“Board of Directors” shall mean, with respect to any person, (i) in the case of any corporation, the board of directors of such person, (ii) in the case of any limited liability company, the board of managers of such person, (iii) in the case of any partnership, the Board of Directors of the general partner of such person and (iv) in any other case, the functional equivalent of the foregoing.

 

“Borrower” and “Borrowers” shall have the meanings assigned to such terms in the preamble hereto and shall include any Eligible Subsidiary which becomes a Borrower pursuant to Section 2.20(b)(iv), Section 5.18(a) and Section 4.03 from time to time.

 

“Borrowing” shall mean (a) Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Term SOFR Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.

 

“Borrowing Availability” shall mean at any time the Line Cap less the aggregate Revolving Exposure of all Lenders at such time.

 

“Borrowing Base” shall mean at any time, subject to adjustment as provided in Section 2.21, an amount equal to the sum of, without duplication:

 

(a)          the book value of Eligible Accounts of the Borrowers with respect to investment grade obligors multiplied by the advance rate of 90%, plus,

 

(b)         the book value of Eligible Accounts of the Borrowers with respect to non-investment grade obligors multiplied by the advance rate of 85% (the sum of clause (a) and clause (b) are referred to as the “Accounts Availability”), plus,

 

(c)          the Cost of Eligible Hydrocarbon Inventory of the Borrowers multiplied by the advance rate of 80%, plus

 

(d)          100% of the cash and Cash Equivalents in deposit accounts subject to Control Agreements under Section 2.22, plus

 

(e)          the lesser of (1) 80% of the Eligible Positive Exchange Agreement Balance and (2) $60,000,000; plus

 

(f)          100% of the value of Paid But Unexpired Standby Letters of Credit, minus

 

(g)       the sum of (i) any Reserves established from time to time by the Collateral Agent in accordance with the terms and conditions of this Agreement, and (ii) Hedging Reserves.

 

The Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate theretofore delivered to the Administrative Agent so long as the Borrowing Base is calculated in accordance with the terms of this Agreement.

 

“Borrowing Base Cash” shall mean 100% of the cash and Cash Equivalents included in the Borrowing Base pursuant to the provisions of clause (d) of the definition of Borrowing Base.

 

“Borrowing Base Certificate” shall mean an Officers’ Certificate from Administrative Borrower, substantially in the form of, and containing the information prescribed by, Exhibit R, delivered to the Administrative Agent setting forth Borrowers’ calculation of the Borrowing Base.

 

“Borrowing Request” shall mean a request by Administrative Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C, or such other form as shall be approved by the Administrative Agent.

 

“Business Day” shall mean any day other than a Saturday, Sunday or other day on which banks in New York City are authorized or required by law to close.

 

“Capital Assets” shall mean, with respect to any person, all equipment, fixed assets and Real Property or improvements of such person, or replacements or substitutions therefor or additions thereto, that, in accordance with GAAP, have been or should be reflected as additions to property, plant or equipment on the balance sheet of such person.

 

“Capital Expenditures” shall mean, for any period, without duplication, all expenditures made directly or indirectly by Borrowers and their Subsidiaries during such period for Capital Assets (whether paid in cash or other consideration, financed by the incurrence of Indebtedness or accrued as a liability) as determined in accordance with GAAP, but excluding (i) expenditures made in connection with the replacement, substitution or restoration of property pursuant to Section 2.10(d), (ii) any portion of such increase attributable solely to acquisitions of property, plant and equipment in Permitted Acquisitions, and (iii) any leases that as of the date hereof qualify as operating leases under GAAP (whether or not such leases are required to be accounted for as capital leases under GAAP after the date hereof). For purposes of this definition, the purchase price of equipment or other fixed assets that are purchased simultaneously with the trade-in of existing assets or with insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount by which such purchase price exceeds the credit granted by the seller of such assets for the assets being traded in at such time or the amount of such insurance proceeds, as the case may be.

 

“Capital Lease Obligations” of any person shall mean the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

 

“Cash Equivalents” shall mean, as to any person,

 

(1)          securities issued or directly and fully and unconditionally guaranteed or insured by the United States 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 12 months or less from the date of acquisition;

 

(2)         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 domestic or foreign commercial bank in the United States having capital and surplus of not less than $500,000,000;

 

(3)          repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (1) or (2) entered into with any financial institution meeting the qualifications specified in clause (2) above;

 

(4)          commercial paper rated at least P-1 by Moody’s Investors Service Inc. or at least A-1 by Standard & Poor’s Ratings Group and in each case maturing within 24 months after the date of creation thereof and Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from Standard & Poor’s Ratings Group or “A2” or higher from Moody’s Investors Service Inc. with maturities of 24 months or less from the date of acquisition;

 

(5)          readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having a rating of “BBB+” or higher from Standard & Poor’s Ratings Group or “Baa1” or higher from Moody’s Investors Service Inc. with maturities of 24 months or less from the date of acquisition;

 

(6)          Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated within the top three ratings category by Standard & Poor’s Ratings Group or Moody’s Investors Service Inc.; and

 

(7)          investment funds investing substantially all of their assets in securities and/or instruments of the types described in clauses (1) through (6) above.

 

“Cash Interest Expense” shall mean, for any period, Consolidated Interest Expense for such period paid or payable in cash, and excluding in any event the sum of (a) interest on any debt paid by the increase in the principal amount of such debt including by issuance of additional debt of such kind or otherwise paid other than in cash, (b) items described in clause (c) or, other than to the extent paid in cash, clause (g) of the definition of “Consolidated Interest Expense” and (c) an amount equal to the gross interest income of Holdings and its Subsidiaries for such period.

 

“Cash Management System” shall have the meaning assigned to such term in Section 2.22.

 

“Cash Trigger” shall have the meaning assigned to such term in Section 2.22(i).

 

“Casualty Event” shall mean any involuntary loss of title, any involuntary loss of, damage to or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of Holdings or any of its Subsidiaries (other than Excluded Subsidiaries). “Casualty Event” shall include but not be limited to any taking of all or any part of any Real Property of Holdings or any Subsidiary (other than an Excluded Subsidiary) or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Requirement of Law, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof. For the avoidance of doubt, to the extent an event, with the passage of time (alone or in conjunction with other events) would result in the right of Holdings and/or any of its Subsidiaries to receive business interruption insurance, such event will to such extent not constitute a Casualty Event.

 

“Catalyst Assets” shall mean all existing and hereafter acquired catalyst assets and inventory, precious metals assets and precious metals inventory and all additions and accessions thereto, all proceeds resulting therefrom, including insurance proceeds, and all rights and privileges incident thereto.

 

“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq. and all implementing regulations.

 

“Certain Hydrocarbon Assets” shall mean crude oil, feedstock, indigenous feedstock and other hydrocarbon inventory of the same type supplied and sold to the Loan Parties by J. Aron & Company LLC and other Persons designated by the Borrowers for purposes of this definition from time to time and/or any of their respective Affiliates (or any permitted successor of the foregoing designated by the Borrowers for such purposes) (collectively, “Certain Hydrocarbon Asset Suppliers”), as applicable, in each instance, other than to the extent owned by Toledo, Paulsboro, Delaware City, Chalmette, Torrance and/or any other Loan Party, respectively, and all proceeds of such crude oil, feedstock, indigenous feedstock or other hydrocarbon inventory of the same type (it being understood and agreed that immediately upon any payment in cash to the Loan Parties in respect of such crude oil, feedstock or other hydrocarbon inventory of the same type, such proceeds shall cease to be “Certain Hydrocarbon Assets”). For the avoidance of doubt, Certain Hydrocarbon Assets shall not include Intermediate Products.

 

“Certain Hydrocarbon Asset Suppliers” shall have the meaning assigned to such term in the definition of “Certain Hydrocarbon Assets”.

 

“Chalmette Facility” shall mean Chalmette’s petroleum refinery and all related assets and properties located in Chalmette, Louisiana.

 

A “Change in Control” shall be deemed to have occurred upon:

 

(a)         Holdings at any time ceases to own, directly or indirectly, 100% of the Equity Interests of Delaware City, Paulsboro, Toledo, Chalmette and Torrance, other than pursuant to a sale expressly permitted pursuant to Section 6.06(a);

 

(b)         the consummation of the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of Holdings and its Subsidiaries, taken as a whole, to any Person or Persons;

 

(c)        the occurrence of both (A) 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 any of its direct or indirect parent companies holding directly or indirectly 100% of the total voting power of the Voting Stock of Holdings and (B) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of Holdings (together with any new directors whose election to such Board of Directors or whose nomination for election was approved by a vote of a majority of the members of the Board of Directors of Holdings, which members comprising such majority are then still in office and were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of Holdings; or

 

  (d)        the consummation of a change of control under any Material Indebtedness;

 

provided, however, that a transaction in which Holdings becomes a Subsidiary of another Person (other than a Person that is an individual) shall not constitute a Change in Control if the shareholders of Holdings immediately prior to such transaction become 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 any of its direct or indirect parent companies holding directly or indirectly 100% of the total voting power of the Voting Stock of Holdings.

 

For purposes of this definition, a person shall not be deemed to have beneficial ownership of Equity Interests subject to a stock purchase agreement, merger agreement or similar agreement until the consummation of the transactions contemplated by such agreement.

 

“Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking into effect of any law, treaty, order, policy, rule or regulation, (b) any change in any law, treaty, order, policy, rule or regulation or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives 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, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

“Charges” shall have the meaning assigned to such term in Section 10.14.

 

“Class,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Incremental Revolving Loans or Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or Swingline Commitment, in each case, under this Agreement as originally in effect or pursuant to Section 2.20, of which such Loan, Borrowing or Commitment shall be a part.

 

“CME” shall mean CME Group Benchmark Administration Limited.

 

“Code” shall mean the Internal Revenue Code of 1986, as amended.

 

“Co-Documentation Agents” shall mean COOPERATIVE RABOBANK U.A., New York Branch, Fifth Third Bank, HSBC Bank USA, National Association, KeyBank National Association, M&T Bank and The Bank of Nova Scotia, in each case in their respective capacity as a co-documentation agent hereunder.

 

“Collateral” shall mean, collectively, all of the Security Agreement Collateral and all other property of whatever kind and nature subject or purported to be subject from time to time to a Lien under any Security Document. For the avoidance of doubt, “Collateral” does not include any assets of and any Equity Interests issued by any Excluded Subsidiary.

 

“Collateral Agent” shall have the meaning assigned to such term in the preamble hereto.

 

“Collection Account” shall have the meaning assigned to such term in Section 2.22.

 

“Commercial Letter of Credit” shall mean any letter of credit, any deferred payment letter of credit, any usance letter of credit or similar instrument issued for the purpose of providing credit support in connection with the purchase of materials, goods or services by, and/or other general corporate purpose of, Borrowers or any of their Subsidiaries.

 

“Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Commitment or Swingline Commitment, and any Commitment to make Revolving Loans extended by such Lender as provided in Section 2.20.

 

“Commitment Fee” shall have the meaning assigned to such term in Section 2.05(a).

 

“Commodity Hedging Agreement” shall mean any agreement (including any master agreement or master netting agreement) that evidences or provides for a swap, cap, collar, floor, put, call, option, future, other derivative, spot purchase or sale, forward purchase or sale, supply or off-take, transportation agreement, storage agreement or other commercial or trading agreement in or involving crude oil, natural gas, any feedstock, blendstock, intermediate product, finished product, refined product or other hydrocarbon product, carbon credit, pollution credits and/or any other “cap and trade” assets or any other energy, weather or emissions related commodity (including any crack spread), or any prices or price indices 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).

 

“Companies” shall mean Holdings and its Subsidiaries (other than Excluded Subsidiaries); and “Company” shall mean any one of them.

 

“Compliance Certificate” shall mean a certificate of a Financial Officer substantially in the form of Exhibit D.

 

“Conforming Changes” shall mean, with respect to use, administration of or conventions associated with SOFR, Term SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of Alternate Base Rate, SOFR, Term SOFR and Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of Business Day and U.S. Government Securities Business Day, timing of borrowing requests or prepayment, conversion or continuation notices, and length of lookback periods) as may be appropriate, in Administrative Agent's discretion, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as Agent determines, in consultation with the Borrowers, is reasonably necessary in connection with the administration of any Loan Document).

 

 

“Consolidated Amortization Expense” shall mean, for any period, the amortization expense of Holdings and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

 

“Consolidated Depreciation Expense” shall mean, for any period, the depreciation expense of Holdings and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

 

“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period, adjusted (without duplication) by (x) adding thereto, in each case only to the extent (and in the same proportion) deducted in determining such Consolidated Net Income (other than with respect to clauses (p) or (n), which shall be added in any event) and without duplication (and with respect to the portion of Consolidated Net Income attributable to any Subsidiary that is an Excluded Subsidiary of Holdings only if a corresponding amount would be permitted at the date of determination to be distributed to Holdings by such Subsidiary that is an Excluded Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its Organizational Documents and all agreements, instruments and Requirements of Law applicable to such Subsidiary):

 

(a)          Consolidated Interest Expense for such period, plus

 

(b)          Consolidated Amortization Expense for such period, plus

 

(c)          Consolidated Depreciation Expense for such period, plus

 

(d)          Consolidated Tax Expense for such period, plus

 

(e)          fees, costs, liabilities and expenses incurred in connection with the Transactions, plus

 

(f)         the aggregate amount of all other non-cash charges, expenses or losses reducing Consolidated Net Income (excluding any non-cash charge, expense or loss that results in an accrual of a reserve for cash charges in any future period and any non-cash charge, expense or loss relating to write-offs, write-downs or reserves with respect to accounts or inventory) for such period, plus

 

(g)         any accruals, fees, charges and expenses (including rationalization, financing, legal, tax, structuring, advising and other similar items) incurred during such period (other than Consolidated Depreciation Expense or Consolidated Amortization Expense), in connection with any acquisition, merger, consolidation, Investment, Asset Sale, other disposition of assets, 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 Effective 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 (including, without limitation, any non-cash expenses or charges recorded in accordance with GAAP relating to equity interests issued to non-employees in exchange for services provided in connection with the Transactions), plus

 

(h)         the amount of any restructuring charges, integration costs, retention charges, stock option and any other equity-based compensation expenses or other business optimization expenses, including, without limitation, costs associated with improvements to IT and accounting functions, costs associated with establishing new facilities, costs 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 and costs related to the closure and/or consolidation of facilities, plus

 

(i)          (A) any extraordinary, exceptional, non-recurring or unusual gains or losses, and (B) any losses and expenses in connection with severance, relocation costs or payments and curtailments or modifications to pension and post-retirement employee benefit plans, plus

 

(j)          any other non-cash charges, expenses or losses including any write offs or write downs reducing Consolidated Net Income for such period and any non-cash expense relating to the vesting of warrants (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 Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period), plus

 

(k)       the amount of customary indemnities and expenses paid or accrued in such period and deducted (and not added back) in such period in computing Consolidated Net Income, plus

 

(l)          any costs or expense incurred 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 cost or expenses are funded with cash proceeds by third Persons that are not Loan Parties contributed to the capital of Holdings or any Subsidiary, plus

(m)         any net loss from disposed or discontinued operations, plus

 

(n)         to the extent not already included in the Consolidated Net Income of such Person and its Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated EBITDA shall include the amount of cash proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder, plus

 

(o)        retention, recruiting, relocation and signing bonuses and expenses, stock option and other equity-based compensation expenses, severance costs, stay bonuses, transaction fees and expenses and management fees and expenses, any one time expense relating to enhanced accounting function or other transaction costs, including those associated with becoming a public company, integration costs, transition costs, consolidation and closing costs for facilities, costs incurred in connection with any non-recurring strategic initiatives, costs incurred in connection with acquisitions and non-recurring intellectual property development, other business optimization expenses (including costs and expenses relating to business optimization programs and new systems design and implementation costs), project start-up costs and other restructuring charges, and accruals or reserves (including restructuring costs related to acquisitions and to closure/consolidation of facilities, retention charges, and systems establishment costs), plus

 

(p)         (i) the Consolidated EBITDA during the relevant Test Period of any Person acquired as a result of a Specified Transaction determined on a Pro Forma Basis, and (ii) the amount of “run rate” and other cost savings, operating expense reductions, other operating improvements and synergies projected by the Borrowers in good faith to be realized in connection with the Transactions or any Specified Transaction or the implementation of an operational initiative or operational change (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, other operating improvements and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) a duly completed certificate signed by a Responsible Officer of the Borrowers shall be delivered to the Administrative Agent together with the Compliance Certificate required to be delivered pursuant to Section 5.01(d), certifying that (i) such cost savings, operating expense reductions, other operating improvements and synergies are factually supportable and reasonably anticipated to be realizable in the good faith judgment of the Borrowers, within 24 months after the consummation of the Specified Transaction or the implementation of an initiative or operational change, which is expected to result in such cost savings, expense reductions, other operating improvements or synergies and (y) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (p) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period; provided, that in no event shall amounts included in the calculation of Consolidated EBITDA in reliance upon this clause (p)(ii) comprise more than 20% of Consolidated EBITDA, plus

 

(q)         cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (y) below for any previous period and not added back, plus

 

(r)         any non-cash increase in expenses (A) resulting from the revaluation of inventory (including any impact of changes to inventory valuation policy methods including changes in capitalization of variances) or other inventory adjustments, or (B) due to purchase accounting adjustments, plus

 

(s)          the amount of payments by any of the Borrowers or any of their Restricted Subsidiaries for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the Board of Directors or a majority of the disinterested members of the Board of Directors of such Borrower or such Restricted Subsidiary in good faith and fees and expenses paid to directors of any of the Borrowers or their direct or indirect parent entities, plus

 

(t)           any net loss from disposed, abandoned or discontinued operations or product lines, plus

 

(u)         costs related to implementation of operational and reporting systems and technology initiatives in an amount not to exceed $25,000,000 during any twelve month period, plus

 

(v)          the non-cash portion of straight line rent expense, plus

 

(w)        earn-out obligations with respect to any Permitted Acquisitions or other investment and paid or accrued during the applicable period to the extent such earn-out obligations are deducted from the calculation of such Consolidated Net Income.

 

(x)        subtracting therefrom (A) any net gain from disposed or discontinued operations and (B) the aggregate amount of all non-cash items increasing Consolidated Net Income (other than the accrual of revenue or recording of receivables in the ordinary course of business) for such period.

 

There shall be included in determining Consolidated EBITDA for any period, without duplication of clause (p) above or any other clause above, (A) the Acquired EBITDA of any Person, property, business or asset acquired by a Borrower or any Subsidiary (other than if acquired by an Excluded Subsidiary) during such period to the extent not subsequently sold, transferred or otherwise disposed of by a Borrower or such Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Excluded Subsidiary that is converted into a Subsidiary Guarantor during such period (each a “Converted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Subsidiary for such period (including the portion thereof occurring prior to such acquisition) and (B) an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) as specified in a certificate prepared in good faith and executed by a Responsible Officer and delivered to the Administrative Agent.

 

For purposes of the covenants set forth in Article VI, Consolidated EBITDA shall not include any Consolidated Net Income or, without duplication, any other amounts attributable to an Excluded Subsidiary, except to the extent actually distributed in cash to, and actually received by, a Loan Party.

 

“Consolidated Fixed Charge Coverage Ratio” shall mean, for any Test Period, the ratio of (a) Consolidated EBITDA for such Test Period to (b) Consolidated Fixed Charges for such Test Period. For the avoidance of doubt, Consolidated EBITDA shall not include any Consolidated Net Income or, without duplication, any other amounts attributable to an Excluded Subsidiary, except to the extent actually distributed in cash to, and actually received by, a Loan Party.

 

“Consolidated Fixed Charges” shall mean, for any period, the sum, without duplication, of

 

(a)          Cash Interest Expense for such period;

 

(b)          the aggregate amount of Unfinanced Capital Expenditures of Holdings and its Subsidiaries (other than Excluded Subsidiaries) paid in cash for such period;

 

(c)        all cash payments in respect of income taxes of Holdings and its Subsidiaries (other than Excluded Subsidiaries which are not part of the consolidated tax group of Holdings) made during such period (net of any cash refund in respect of income taxes actually received during such period);

 

(d)         the principal amount of all scheduled amortization payments paid in cash on all Indebtedness (including the principal component of all Capital Lease Obligations) of Holdings and its Subsidiaries (other than Excluded Subsidiaries) for such period (as determined on the first day of the respective period);

 

(e)        all cash dividend payments on any series of Disqualified Capital Stock of Holdings or any of its Subsidiaries (other than Excluded Subsidiaries) (other than dividend payments to Borrowers or any of their Subsidiaries that are Subsidiary Guarantors); and

 

(f)          all cash dividend payments on any Preferred Stock (other than Disqualified Capital Stock) of Holdings or any of its Subsidiaries (other than Excluded Subsidiaries) (other than dividend payments to Borrowers or any of their Subsidiaries that are Subsidiary Guarantors).

 

“Consolidated Interest Expense” shall mean, for any period, the total consolidated interest expense of Holdings and its Subsidiaries (other than Excluded Subsidiaries) for such period determined on a consolidated basis in accordance with GAAP plus, without duplication:

 

(a)       imputed interest on Capital Lease Obligations and Attributable Indebtedness of Holdings and its Subsidiaries (other than Excluded Subsidiaries) for such period;

 

(b)         commissions, discounts and other fees and charges owed by Holdings or any of its Subsidiaries (other than Excluded Subsidiaries) with respect to letters of credit securing financial obligations, bankers’ acceptance financing and receivables financings for such period;

 

(c)        amortization of debt issuance costs, debt discount or premium, unused line fees, commitment fees, prepayment premiums, upfront fees, administrative agency costs and other financing fees and expenses incurred by Holdings or any of its Subsidiaries (other than Excluded Subsidiaries) for such period;

 

(d)         cash contributions to any employee stock ownership plan or similar trust made by Holdings or any of its Subsidiaries (other than Excluded Subsidiaries) to the extent such contributions are used by such plan or trust to pay interest or fees to any person (other than Delaware City, Paulsboro, Toledo, Chalmette, Torrance or any of their respective Wholly Owned Subsidiaries) in connection with Indebtedness incurred by such plan or trust for such period;

 

(e)         all interest paid or payable with respect to discontinued operations of Holdings or any of its Subsidiaries (other than Excluded Subsidiaries) for such period;

 

(f)         the interest portion of any deferred payment obligations of Holdings or any of its Subsidiaries (other than Excluded Subsidiaries) for such period;

 

(g)          all interest on any Indebtedness of Holdings or any of its Subsidiaries (other than Excluded Subsidiaries) of the type described in clause (f) or (k) of the definition of “Indebtedness” for such period;

 

(h)          minus the total consolidated interest income of Holdings and its Subsidiaries (other than Excluded Subsidiaries) for such period;

 

provided that (a) to the extent directly related to the Transactions, debt issuance costs, debt discount or premium and other financing fees, costs and expenses shall be excluded from the calculation of Consolidated Interest Expense and (b) Consolidated Interest Expense shall be calculated after giving effect to Hedging Agreements related to interest rates (including associated costs), but excluding unrealized gains and losses with respect to Hedging Agreements related to interest rates.

 

Consolidated Interest Expense shall be calculated on a Pro Forma Basis to give effect to any Indebtedness (other than Indebtedness incurred for ordinary course working capital needs under ordinary course revolving credit facilities) incurred, assumed or permanently repaid or extinguished at any time on or after the first day of the Test Period and prior to the date of determination in connection with any Permitted Acquisitions and Asset Sales and other dispositions of assets (in each case, other than any dispositions in the ordinary course of business) as if such incurrence, assumption, repayment or extinguishing had been effected on the first day of such period.

 

“Consolidated Net Income” shall mean, for any period, the consolidated net income (or loss) of Holdings and its Subsidiaries (except for Excluded Subsidiaries unless distributed in cash to, and actually received by, a Loan Party) determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein), without duplication:

 

(a)          the net income (or loss) of any person (other than a Borrower or a Subsidiary Guarantor) in which any person other than Holdings, the other Borrowers and the Subsidiary Guarantors has an ownership interest, except to the extent that cash in an amount equal to any such income has actually been received by Borrowers or Subsidiary Guarantors;

 

(b)        the net income of any Subsidiary of Holdings (other than a Subsidiary Guarantor) during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary (other than a Subsidiary Guarantor) of that income is not permitted as of the relevant date of determination by operation of the terms of its Organizational Documents or any agreement, instrument or Requirement of Law applicable to that Subsidiary (other than a Subsidiary Guarantor) during such period, except that Holdings’ equity in net loss of any such Subsidiary for such period shall be included in determining Consolidated Net Income;

 

(c)          the after-tax effect of any extraordinary, exceptional, non-recurring or unusual gain (or loss) realized during such period by Holdings or any of its Subsidiaries upon any Asset Sale or other dispositions of assets by Holdings or any of its Subsidiaries;

 

(d)          the after-tax effect of gains and losses due solely to fluctuations in currency values determined in accordance with GAAP for such period;

 

(e)          earnings resulting from any reappraisal, revaluation or write-up of assets;

 

(f)          unrealized gains and losses with respect to Hedging Obligations for such period;

 

(g)         the after-tax effect of any extraordinary or nonrecurring gain (or extraordinary or non-recurring loss) recorded or recognized by Holdings or any of its Subsidiaries during such period;

 

(h)          the cumulative effect of changes in accounting principles during such period;

 

(i)           the after-tax effects of adjustments (including the effects of such adjustments pushed down to Holdings and Subsidiaries) in the property and equipment, inventory and other intangible assets, deferred revenue and debt line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to the Transactions or any consummated acquisition or the amortization or write-off of any amounts thereof,

 

(j)           the after-tax effect of income (or loss) from the early extinguishment of Indebtedness or swap obligations under Hedging Agreements or other derivative instruments;

 

(k)          any impairment charge or asset write-off, in each case pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP,

 

(l)           any non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights shall be excluded, and

 

(m)        any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Asset Sale, other disposition of assets, recapitalization, Investment, 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 Effective 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.

 

“Consolidated Tax Expense” shall mean, for any period, the tax expense (including taxes based on income, profits, capital gains, property excise, franchise, capital, stamp, sales, value-added withholdings and similar federal, state, local or foreign taxes, and including penalties and interest thereon), of Holdings and its Subsidiaries, for such period, determined on a consolidated basis in accordance with GAAP.

 

“Contested Collateral Lien Conditions” shall mean, with respect to any Permitted Lien of the type described in clauses (e) and (f) of Section 6.02, the following conditions:

 

(a)          Borrowers shall cause any proceeding instituted contesting such Lien to stay the sale or forfeiture of any portion of the Collateral on account of such Lien; and

 

(b)          at the option and at the reasonable request of the Administrative Agent, to the extent such Lien is in an amount in excess of $20,000,000, the appropriate Loan Party shall maintain cash reserves in an amount sufficient to pay and discharge such Lien and the Administrative Borrower’s reasonable estimate of all interest and penalties related thereto.

 

“Contingent Obligation” shall mean, as to any person, any obligation, agreement, understanding or arrangement of such person guaranteeing or intended to guarantee any Indebtedness (“primary obligations”) of any other person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (c) 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; (d) with respect to bankers’ acceptances, letters of credit and similar credit arrangements, until a reimbursement obligation arises; or (e) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or any product warranties and other customary contractual indemnities. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such person may be liable, whether singly or jointly, pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such person is required to perform thereunder) as determined by such person in good faith.

 

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

 

“Control Agreement” shall have the meaning assigned to such term in the Security Agreement.

 

“Cost” shall mean, as determined by the Collateral Agent acting reasonably and in good faith consistent with customary industry practice for asset-based financings in the refining industry, with respect to hydrocarbon Inventory, the market value; provided, that for purposes of the calculation of the Borrowing Base, the Cost of the hydrocarbon Inventory shall not include: (i) the portion of the cost of hydrocarbon Inventory equal to the profit earned by any Affiliate on the sale thereof to a Loan Party or (ii) write-ups or write-downs in cost with respect to currency exchange rates.

 

“Covered Entity” shall mean: (a) a “covered entity,” as defined and interpreted in accordance with 12 C.F.R. §252.82(b); (b) a “covered bank,” as defined in and interpreted in accordance with 12 C.F.R. §47.3(b); or (c) a “covered FSI,” as defined in and interpreted in accordance with 12 C.F.R. §382.2(b).

 

“Covered Party” shall have the meaning assigned to such term in Section 10.20(a).

 

“Credit Extension” shall mean, as the context may require, (i) the making of a Loan by a Lender or (ii) the issuance of any Letter of Credit, or the amendment, extension or renewal of any existing Letter of Credit to the effect of increasing its face amount or extending its expiration date, by any Issuing Bank.

 

“Daily Simple SOFR” shall mean, with respect to any applicable determination date, the secured overnight financing rate published on the FRBNY website (or any successor source satisfactory to Administrative Agent).

 

“DCR Facility” shall mean Delaware City’s petroleum refinery and all related assets and properties located in New Castle County, Delaware City, Delaware.

 

“Default” shall mean any event, occurrence or condition which is, or upon notice, lapse of time or both would constitute, an Event of Default.

 

“Default Rate” shall have the meaning assigned to such term in Section 2.06(c).

 

“Defaulting Lender” means any Lender whose act or failure to act, whether directly or indirectly, causes it to meet any part of the definition of Lender Default.

 

“Designated Accounts Receivable” shall mean Accounts of Holdings comprised only of rack accounts receivables arising from sales occurring at a terminal or similar facility.

 

“Disqualified Capital Stock” shall mean any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part (other than in Equity Interests that are otherwise not Disqualified Capital Stock), on or prior to the ninety-first (91st) day after the Revolving Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interests referred to in (a) above (other than in Equity Interests that are otherwise not Disqualified Capital Stock), in each case at any time on or prior to the ninety-first (91st) day after Revolving Maturity Date, or (c) contains any repurchase obligation for cash purchase which may come into effect prior to Payment in Full of all Obligations; provided, however, that any Equity Interests that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the occurrence of a change in control or an asset sale occurring prior to the ninety-first (91) day after the Revolving Maturity Date shall not constitute Disqualified Capital Stock if such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to the Payment in Full of the Obligations.

 

“Distressed Person” shall have the meaning assigned to such term in “Lender-Related Distress Event”.

 

“Dividend” with respect to any person shall mean that such person has declared or paid a dividend or returned any equity capital to the holders of its Equity Interests or authorized or made any other distribution, payment or delivery of property (other than Qualified Capital Stock of such person) or cash to the holders of its Equity Interests in each case, in their capacity as such, or redeemed, retired, purchased or otherwise acquired, for consideration any of its Equity Interests outstanding (or any options or warrants issued by such person with respect to its Equity Interests), or set aside any funds in a sinking or other similar fund for any of the foregoing purposes, or shall have permitted any of its Subsidiaries (other than an Excluded Subsidiary) to purchase or otherwise acquire for consideration any of the Equity Interests of such person outstanding (or any options or warrants issued by such person with respect to its Equity Interests). Without limiting the foregoing, “Dividends” with respect to any person shall also include all payments made or required to be made by such person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside in a sinking or other similar fund of any funds for the foregoing purposes.

 

“Division” shall mean the division of assets, liabilities and/or obligations of a Person among two or more Persons (whether pursuant to a "plan of division" or similar arrangement), which may or may not include the original dividing Person and pursuant to which the original dividing Person may or may not survive.

 

“dollars” or “$” shall mean lawful money of the United States.

 

“Domestic Subsidiary” shall mean any Subsidiary that is organized or existing under the laws of the United States, any state thereof or the District of Columbia.

 

“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in an EEA Member Country that is subject to the supervision of an EEA Resolution Authority; (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) above; or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in the foregoing clauses and is subject to consolidated supervision with its parent.

 

“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein and Norway.

 

“EEA Resolution Authority” shall mean any public administrative authority or any Person entrusted with public administrative authority of an EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

“Effective Date” shall mean the date on which the conditions set forth in Section 4.01 of this Agreement are satisfied and this Agreement becomes effective pursuant to Section 10.06.

 

“Electronic Record” and “Electronic Signature” shall have the meanings ascribed to such terms in 15 U.S.C. §7006

 

“Eligible Accounts” shall have the meaning assigned to such term in Section 2.21(a).

 

“Eligible Assignee” shall mean any person to whom it is permitted to assign Loans and Commitments pursuant to Section 10.04(b)(i); provided that “Eligible Assignee” shall not include Parent, Borrowers or any of their respective Affiliates or Subsidiaries or any natural person.

 

“Eligible Positive Exchange Agreement Balance” shall mean, at any date of determination, the amount of the positive balance, valued at a mark to market basis, of the hydrocarbon Inventory that a Borrower has a right to receive from (i) an operating company counterparty or trading partner, (ii) a financial institution trading party counterparty or trading partner which is not a Lender or an Affiliate of a Lender or (iii) a financial institution trading party counterparty or trading partner which is a Lender or an Affiliate of a Lender; provided, however, that, any such Lender or Affiliate of a Lender financial institution trading party shall have delivered to the Administrative Agent a written agreement, in form and substance reasonably acceptable to the Administrative Agent, waiving any and all rights in respect of the Collateral or of offset under this Agreement with respect to any liabilities or obligations owing to such financial institution trading party in its capacity as such; in the case of a trading party or counterparty under clauses (i), (ii) or (iii), under an Exchange Agreement or money owing to a Borrower in connection with such exchange of hydrocarbon Inventory under an Exchange Agreement, net of any discounts, allowances, rebates, credits, offsets or counterclaims, including any amount billed for or representing retainage, if any, by any counterparty to an Exchange Agreement, and only to the extent such Borrower’s rights in such positive balance and in the hydrocarbon Inventory to which such positive balance relates are subject to a valid, first priority (subject only to Permitted Liens that by operation of law have priority), perfected security interest in favor of the Administrative Agent as security for the Secured Obligations; provided, that, the value of the Eligible Positive Exchange Agreement Balance shall be subject to Reserves as reasonably determined by the Collateral Agent in good faith pursuant to the terms and conditions set forth in the definition of “Reserves”.

 

“Eligible Hydrocarbon Inventory” shall have the meaning assigned to such term in Section 2.21(b).

 

“Eligible Subsidiary” shall mean any Wholly Owned Subsidiary of a Borrower that is (i) a Domestic Subsidiary and (ii) owns Accounts and/or hydrocarbon Inventory, in each case, other than an Excluded Subsidiary.

 

“Embargoed Person” shall mean any party that is, or is owned or controlled by an entity that, (i) is publicly identified on the most current list of “Specially Designated Nationals and Blocked Persons” published by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), is subject to sanctions by the U.S. State Department, the United Nations or the European Union such that a U.S. Person cannot deal or otherwise engage in a business transaction with such Person, or resides, is organized or chartered, or has a place of business in a country or territory subject to OFAC sanctions or embargo programs or (ii) is publicly identified as prohibited from doing business with the United States under the International Emergency Economic Powers Act, the Trading With the Enemy Act, or any other Requirement of Law.

 

“Environment” shall mean ambient air, indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources, the workplace or as otherwise defined in any Environmental Law.

 

“Environmental Claim” shall mean any claim, notice, demand, order, action, suit, proceeding or other communication alleging liability for or obligation with respect to any investigation, remediation, removal, cleanup, response, corrective action, damages to natural resources, personal injury, property damage, fines, penalties or other costs resulting from, related to or arising out of (i) the presence, Release or threatened Release in or into the Environment of Hazardous Material at any location or (ii) any violation or alleged violation of any Environmental Law, and shall include any claim seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from, related to or arising out of the presence, Release or threatened Release of Hazardous Material or alleged injury or threat of injury to health, safety or the Environment.

 

“Environmental Law” shall mean any and all present and future treaties, laws, statutes, ordinances, regulations, rules, decrees, orders, judgments, consent orders, consent decrees, code or other binding requirements of Governmental Authorities, and the common law, relating to protection of public health or the Environment, the Release or threatened Release of Hazardous Material, natural resources or natural resource damages, or occupational safety or health, and any and all Environmental Permits.

 

“Environmental and Necessary Capex” shall mean capital expenditures to the extent deemed reasonably necessary, as determined by the Companies, in good faith and pursuant to prudent judgment, that are required by Applicable Law (including to comply with Environmental Laws) or are undertaken for health and safety reasons (including remedial activities).

 

“Environmental Permit” shall mean any permit, license, approval, registration, notification, exemption, consent or other authorization required by or from a Governmental Authority under Environmental Law.

 

“Equipment” shall have the meaning assigned to such term in the Security Agreement.

 

“Equity Interest” shall mean, with respect to any person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such person, including, if such person is a partnership, partnership interests (whether general or limited) and 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 property of, such partnership, whether outstanding on the date hereof or issued after the Effective Date, but excluding debt securities convertible or exchangeable into such equity.

 

“Equity Issuance” shall mean, without duplication, (i) any issuance or sale by Holdings after the Effective Date of any Equity Interests in Holdings (including any Equity Interests issued upon exercise of any warrant or option) or any warrants or options to purchase Equity Interests or (ii) any contribution to the capital of Holdings.

 

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

 

“ERISA Affiliate” shall mean, with respect to any person, any trade or business (whether or not incorporated) that, together with such person, is treated as a single employer under Section 414 of the Code.

 

“ERISA Event” shall mean (a) any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period is waived by regulation); (b) with respect to a Plan, the failure to satisfy the minimum funding standard of Section 412 of the Code and Section 302 of ERISA, whether or not waived; (c) the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (d) the filing pursuant to Section 412(c) of the Code or Section 303(d) of ERISA (or after the effective date of the Pension Protection Act of 2006, Section 412(c) of the Code and Section 302(c) of ERISA) of an application for a waiver of the minimum funding standard with respect to any Plan; (e) the incurrence by any Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (f) the receipt by any Company or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, or the occurrence of any event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (g) the incurrence by any Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the withdrawal from any Plan or Multiemployer Plan; (h) the receipt by any Company or its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (i) the “substantial cessation of operations” within the meaning of Section 4062(e) of ERISA with respect to a Plan; (j) the making of any amendment to any Plan which could result in the imposition of a lien or the posting of a bond or other security; and (k) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in liability to any Company.

 

“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or ay successor person), as in effect from time to time.

 

“Event of Default” shall have the meaning assigned to such term in Section 8.01.

 

“Excess Amount” shall have the meaning assigned to such term in Section 2.10(e).

 

“Excess Availability” shall mean, at any time, an amount equal to (A) the then effective Borrowing Availability, plus (B) Suppressed Availability.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

“Exchange Agreement” shall mean an agreement under which a Borrower undertakes to deliver goods to an unaffiliated Person or on behalf of an unaffiliated Person to a customer of such Person in exchange for such Person’s delivery of similar goods to such Borrower or a customer of such Borrower.

 

“Excluded Account” means any Deposit Account, Securities Account or Commodities Account (i) for which all or substantially all of the funds on deposit therein are used solely to fund payroll, 401(k) and other retirement plans and employee benefits or health care benefits, and any trust accounts, tax accounts or accounts holding funds of third parties, (ii) holding at all times less than $500,000 individually or $2,000,000 in the aggregate, together with all such other Deposit Accounts, Securities Accounts and Commodities Accounts excluded pursuant to this clause (ii), (iii) holding assets subject to Liens permitted by Section 6.02(f), (o), (r), (u), (w), (y), or (jj), (iv) holding identifiable proceeds of (A) any Indebtedness permitted under Section 6.01(e), (m), (t), (u), (v), (x), (aa), or (dd), and permitted to be secured under Section 6.02 or (B) any other funded secured Indebtedness permitted under Section 6.01 and permitted to be secured under Section 6.02 hereof, or (v) which are segregated Deposit Accounts, Securities Accounts or Commodities Accounts and contain only the proceeds of assets that do not constitute Revolving Credit Priority Collateral.

 

“Excluded Subsidiary” shall mean each Domestic Subsidiary in existence on the Effective Date or formed or acquired after the Effective Date, in each case, that is set forth on Schedule 1.01(e) or that is designated as an Excluded Subsidiary pursuant to Section 5.18(b). For the avoidance of doubt, each Excluded Subsidiary shall not be a Subsidiary Guarantor, and to the extent that an Excluded Subsidiary’s net income would otherwise be included in the definition of Consolidated Net Income or Consolidated EBITDA or any component thereof such Excluded Subsidiary’s net income shall not be included for purposes of calculating Consolidated Net Income or Consolidated EBITDA unless actually distributed in cash to, and actually received by, a Loan Party.

 

“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of Borrowers hereunder: (a) Taxes imposed on or measured by its overall income or profits or franchise Taxes (including any branch profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction) imposed on it (in lieu of income Taxes), however denominated, by a jurisdiction (i) as a result of the recipient being organized or having its principal office or, in the case of any Lender, its applicable lending office in such jurisdiction, or (ii) as a result of a trade or business, a permanent establishment, or a present or former connection between the Administrative Agent, any Lender, any Issuing Bank or other recipient and the jurisdiction of the taxing authority imposing such Tax (other than any connection resulting solely from being a Lender hereunder); (b) in the case of any Lender (including a Foreign Lender (other than an assignee pursuant to a request by Administrative Borrower under Section 2.16)), any U.S. federal withholding Tax that is imposed on payments hereunder pursuant to any Requirements of Law that are in effect at the time such Lender becomes a party hereto, except to the extent that such Lender’s assignor, if any, was entitled, immediately prior to such assignment, to receive additional amounts or indemnity payments from Borrowers with respect to such withholding Tax pursuant to Section 2.15;  (c) in the case of any Lender (including a Foreign Lender) who designates a new lending office, any U.S. federal withholding Tax that is imposed on payments hereunder pursuant to any Requirements of Law that are in effect at the time of such change in lending office, except to the extent that such Lender was entitled, immediately prior to such change in lending office, to receive additional amounts or indemnity payments from Borrowers with respect to such withholding Tax pursuant to Section 2.15; (d) any Tax that is attributable to such recipient’s failure to comply with Section 2.15(e); and (e) any Taxes imposed under FATCA.

 

“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal or unlawful 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 not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Loan Party or the grant of such security interest would otherwise have become effective with respect to such Swap Obligation but for such Loan Party’s failure to constitute an “eligible contract participant” at such time.

 

“Existing Lien” shall have the meaning assigned to such term in Section 6.02(c).

 

“Existing Loans” shall mean the Loans outstanding under the Existing Revolving Credit Agreement immediately prior to the Effective Date.

 

“Existing Revolving Credit Agreement” shall have the meaning assigned to such term in the recitals hereto.

 

“ExxonMobil” means each of ExxonMobil Corporation or any of its Affiliates.

 

“FATCA” shall mean Sections 1471 through 1474 of the Code (or any amended or successor version that is substantially comparable thereto) and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreements,  treaty or convention among Governmental Authorities that implement the foregoing.

 

“Federal Funds Effective Rate” shall mean, for any day, the per annum rate calculated by FRBNY based on such day's federal funds transactions by depository institutions (as determined in such manner as FRBNY shall set forth on its public website from time to time) and published on the next Business Day by FRBNY as the federal funds effective rate; provided, that in no event shall the Federal Funds Effective Rate be less than zero.

 

“Fee Letter” shall mean the confidential fee letter, dated as of May 2, 2018, by and among the Administrative Agent and the Borrowers.

 

“Fees” shall mean the Commitment Fees, the Administrative Agent Fees, the LC Participation Fees, the Fronting Fees and any other fees which are provided for in the Fee Letter.

 

“Financial Covenant Testing Amount” shall mean (as of any date of determination) an amount equal to 10.0% of Line Cap.

 

“Financial Officer” of any person shall mean the chief financial officer, principal accounting officer, treasurer or controller of such person.

 

“Financing Off-Take Agreements” shall mean any Off-Take Agreements that finance (i.e., a financing transaction rather than a commercial trading transaction) the acquisition, replacement, production or improvement of hydrocarbon products. “Financing Off-Take Agreements” does not include Off-Take Agreements that are not in the nature of a financing transaction (i.e., excludes Off-Take Agreements that are in the nature of a commercial trading transaction).

 

“Financing Oil Supply Agreements” shall mean any Oil Supply Agreements that finance (i.e., a financing transaction rather than a commercial trading transaction) the acquisition, replacement, production or improvement of hydrocarbons. “Financing Oil Supply Agreements” does not include Oil Supply Agreements that are not in the nature of a financing transaction (i.e., excludes Oil Supply Agreements that are in the nature of a commercial trading transaction).

 

“FIRREA” shall mean the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.

 

“Foreign Lender” shall mean any Lender that is not, for U.S. federal income Tax purposes, (i) an individual who is a citizen or resident of the United States, (ii) a corporation, partnership or other entity treated as a corporation or partnership created or organized in or under the laws of the United States, or any political subdivision thereof, (iii) an estate whose income is subject to U.S. federal income taxation regardless of its source or (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States persons have the authority to control all substantial decisions of such trust. In addition, solely for purposes of clauses (b) and (c) of the definition of Excluded Taxes, a Foreign Lender shall include a partnership or other entity treated as a partnership created or organized in or under the laws of the United States, or any political subdivision thereof, but only to the extent the partners of such partnership (including indirect partners if the direct partners are partnerships or other entities treated as partnerships for U.S. federal income Tax purposes created or organized in or under the laws of the United States or any political subdivision thereof) are treated as Foreign Lenders under the preceding sentence (in which event, the determination of whether a U.S. federal withholding Tax on interest payments was imposed pursuant to any Requirements of Law in effect at the time such Foreign Lender became a party hereto will be made by reference to the time when the applicable direct or indirect partner became a direct or indirect partner of such Foreign Lender, but only if such date is later than the date on which such Foreign Lender became a party hereto).

 

“Foreign Plan” shall mean any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Company with respect to employees employed outside the United States.

 

“Foreign Subsidiary” shall mean a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any state thereof or the District of Columbia.

 

“Form 8-K” shall have the meaning assigned to such term in Section 5.02(a).

 

“FRBNY” shall mean the Federal Reserve Bank of New York.

 

“Fronting Fee” shall have the meaning assigned to such term in Section 2.05(c).

 

“Fund” shall mean any person that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

 

“GAAP” subject to Section 1.04, shall mean generally accepted accounting principles in the United States applied on a consistent basis.

 

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

 

“Governmental Real Property Disclosure Requirements” shall mean any Requirement of Law of any Governmental Authority requiring notification of the buyer, lessee, mortgagee, assignee or other transferee of any Real Property, facility, establishment or business, or notification, registration or filing to or with any Governmental Authority, in connection with the sale, lease, mortgage, assignment or other transfer (including any transfer of control) of any Real Property, facility, establishment or business, of the actual or threatened presence or Release in or into the Environment, or the use, disposal or handling of Hazardous Material on, at, under or near the Real Property, facility, establishment or business to be sold, leased, mortgaged, assigned or transferred.

 

“Guaranteed Obligations” shall have the meaning assigned to such term in Section 7.01.

 

“Guarantees” shall mean the guarantees issued pursuant to Article VII by the Loan Parties.

 

“Hazardous Materials” shall mean the following: hazardous substances; hazardous wastes; polychlorinated biphenyls (“PCBs”) or any substance or compound containing PCBs; asbestos or any asbestos-containing materials in any form or condition; radon or any other radioactive materials including any source, special nuclear or by-product material; and any other pollutant or contaminant or chemicals, wastes, materials, compounds, constituents or substances, subject to regulation or which can give rise to liability under any Environmental Laws.

 

“Hedging Agreement” shall mean any swap, cap, collar, forward purchase or similar agreements or arrangements dealing with interest rates or currency exchange rates, either generally or under specific contingencies and any Commodity Hedging Agreement.

 

“Hedging Obligations” shall mean obligations under or with respect to Hedging Agreements.

 

“Hedging Reserves” shall mean the determination by the Collateral Agent, in consultation with any Lender or any of its Affiliates that enters into a Hedging Agreement in respect of interest rates or commodity prices with any of the Loan Parties, reasonably and in good faith from the perspective of an asset-based lender, of an appropriate reserve against the Borrowing Base with respect to the exposures of the Loan Parties in respect of such Hedging Agreement relating to interest rates or commodity prices; provided, that, the maximum amount of “Hedging Reserves” shall in no event exceed $35,000,000.

 

“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 Administrative Agent in consultation with the Borrowers from time to time.

 

“High Yield Indebtedness” shall mean collectively, (i)  the Indebtedness incurred pursuant to that certain Indenture, dated as of May 13, 2020, under which the 2028 Senior Notes were issued, as amended, restated, supplemented, reaffirmed or otherwise modified, replaced or refinanced from time to time, (ii) the Indebtedness incurred pursuant to that certain Indenture, dated as of August 21, 2023, under which the 2030 Senior Notes were issued, as amended, restated, supplemented, reaffirmed or otherwise modified, replaced or refinanced from time to time, (iii) senior unsecured loans, senior unsecured notes or other similar high yield indebtedness and/or other unsecured Indebtedness, and (iv) solely to the extent amending, extending, replacing and/or refinancing the Indebtedness under clauses (i) or (ii) of this definition, senior secured Indebtedness, that (I) if secured by the Revolving Credit Priority Collateral, are subordinated in right of priority only with respect to the Revolving Credit Priority Collateral pursuant to an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent, or, (II) in the case of secured Indebtedness that does not have any Liens on any of the Revolving Credit Priority Collateral, either (A) such secured Indebtedness, in respect of any Real Property where Revolving Credit Priority Collateral is located with a value in excess of $15,000,000 are subject to a collateral access agreement in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent (it being understood and agreed that the form and substance of the Revolving Credit Collateral Access Letter Agreement dated as of February 9, 2012 is acceptable) or (B) the Collateral Agent, if so reasonably elected by it, shall have established Reserves in connection with the incurrence of such secured Indebtedness; provided, that any Indebtedness incurred pursuant to this clause (iv) which is secured shall have a maturity date of not less than 180 days after the Revolving Maturity Date.

 

“Holdings” shall have the meaning assigned to such term in the preamble hereto.

 

“Immaterial Subsidiary” shall mean, at any time, any Subsidiary that is designated by the Borrowers as an “Immaterial Subsidiary” if and for so long as such Subsidiary, together with all other Immaterial Subsidiaries, has (a) total assets at such time not exceeding 5.00% of Total Assets as of the most recent fiscal quarter for which balance sheet information is available and (b) total revenues and operating income for the most recent 12-month period for which income statement information is available not exceeding 5.00% of Holdings’ consolidated revenues and operating income, respectively; provided that such Subsidiary shall be an Immaterial Subsidiary only to the extent that and for so long as all of the above requirements are satisfied.

 

“Increase Effective Date” shall have the meaning assigned to such term in Section 2.20(a).

 

“Increase Joinder” shall have the meaning assigned to such term in Section 2.20(c).

 

“Incremental Facility Amount” shall have the meaning assigned to such term in Section 2.20(a).

 

“Incremental Revolving Commitments” shall have the meaning assigned to such term in Section 2.20(a).

 

“Incremental Revolving Loan” shall have the meaning assigned to such term in Section 2.20(c).

 

“Indebtedness” of any person shall mean, without duplication, (a) all obligations of such person for borrowed money; (b) all obligations of such person evidenced by bonds, debentures, notes or similar instruments; (c) [Reserved]; (d) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person; (e) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business and not overdue by more than 120 days unless subject to an ongoing dispute being contested in good faith); (f) all Indebtedness of others secured by any Lien on property owned or acquired by such person, whether or not the obligations secured thereby have been assumed, but limited to the fair market value of such property; (g) all Capital Lease Obligations, Purchase Money Obligations (other than those constituting Indebtedness pursuant to clause (e) above) and synthetic lease obligations of such person; (h) all Hedging Obligations to the extent required to be reflected on a balance sheet of such person; (i) all Attributable Indebtedness of such person; (j) all obligations of such person for the reimbursement of any obligor in respect of letters of credit, letters of guaranty, bankers’ acceptances and similar credit transactions; and (k) all Contingent Obligations of such person in respect of Indebtedness or obligations of others of the kinds referred to in clauses (a) through (j) above. The Indebtedness of any person shall include the Indebtedness of any other entity (including any partnership in which such person is a general partner) to the extent such person is liable therefor as a result of such person’s ownership interest in or other relationship with such entity, except (other than in the case of general partner liability) to the extent that terms of such Indebtedness expressly provide that such person is not liable therefor. For the avoidance of doubt, Indebtedness shall not in any event include transactions classified as operating leases in accordance with GAAP as in effect on the date hereof, regardless of any subsequent change in GAAP.

 

“Indemnified Taxes” shall mean all Taxes other than Excluded Taxes imposed on or with respect to any payment made by or on account of any obligation of the Borrowers under any Loan Document.

 

“Indemnitee” shall have the meaning assigned to such term in Section 10.03(b).

 

“Information” shall have the meaning assigned to such term in Section 10.12.

 

“Initial Revolving Loans” shall have the meaning assigned to such term in the definition of “Revolving Commitments”.

 

“Intellectual Property” shall mean trademarks, trade names, service marks, copyrights, technology, trade secrets, know-how and processes.

 

“Intercompany Note” shall mean a promissory note substantially in the form of Exhibit P.

 

“Intercreditor Agreements” shall mean the Receivables Intercreditor Agreement, the agreements listed on Schedule 1.01(b) and any other agreement either (i) reasonably requested by the Administrative Agent under the terms and conditions of this Agreement or (ii) reasonably designated by the Administrative Borrower and the Administrative Agent as an “Intercreditor Agreement” in each instance from time to time.

 

“Interest Election Request” shall mean a request by Administrative Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.08(b), substantially in the form of Exhibit E.

 

“Interest Payment Date” shall mean (a) with respect to any ABR Loan (including Swingline Loans), the first calendar day of each April, July, October and January to occur during any period in which such Loan is outstanding, (b) with respect to any Term SOFR Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Term SOFR Loan with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, (c) with respect to any Revolving Loan, Incremental Revolving Loan or Swingline Loan, the Revolving Maturity Date or such earlier date on which the Revolving Commitments are terminated.

 

“Interest Period” shall mean, with respect to any Term SOFR Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter, as Administrative Borrower may elect; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing; provided, however, that an Interest Period shall be limited to the extent required under Section 2.03(d).

 

“Intermediate Products” shall mean hydrocarbon intermediate products and blendstocks. For the avoidance of doubt, Intermediate Products shall not include Certain Hydrocarbon Assets.

 

“Inventory” shall mean all “inventory,” as such term is defined in the UCC as in effect on the date hereof in the State of New York, wherever located, in which any Person now or hereafter has rights.

 

“Investment Grade” shall mean, with respect to any Person (including Account Debtors), Persons having (or the relevant obligation of which Persons are guaranteed by other Persons having) ratings of Baa3 or higher from Moody’s Investors Service Inc. or BBB- or higher from Standard & Poor’s Ratings Group.

 

“Investments” shall mean, as to any person, any direct or indirect acquisition or investment by such person, whether by means of (i) the purchase or other acquisition of Equity Interests or debt or other securities of another person, (ii) a loan, advance or capital contribution to, guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another person, including any partnership or joint venture interest in such other person, (iii) the purchase or ownership of a futures contract, or becoming liable for the sale or purchase of currency or commodities at a future date in the nature of a futures contract, or (iv) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another person or assets constituting a business unit, line of business or division of such person. Except as otherwise expressly provided in this Agreement, the amount of an Investment will be its fair market value as determined at the time the Investment is made and without giving effect to subsequent changes in value. To the extent the giving of a Guarantee or other credit support or similar liability results in an Investment, the value of such Investment outstanding at any time of determination will be reduced upon the expiration, reduction, termination or cancellation of such Guarantee, credit support or liability in an amount equal to the Guarantee, credit support or liability expired, reduced, terminated or cancelled. Notwithstanding anything to the contrary herein, in the case of any Investment made by any Company in a Person substantially concurrently with a cash distribution by such Person to any Company (a “Concurrent Cash Distribution”), then the amount of such Investment shall be deemed to be the fair market value of the Investment, less the amount of the Concurrent Cash Distribution.

 

“Issuing Bank” shall mean, as the context may require, (a) Bank of America, N.A., Bank OZK, Citibank, N.A., MUFG Bank Ltd., PNC Bank, National Association, Wells Fargo Bank, National Association, Citizens Bank, N.A. (including, in each case, any respective Lending Office thereof), and each Lender or Affiliate of a Lender that has agreed with the Borrowers and the Administrative Agent to be an Issuing Bank hereunder, in its capacity as an issuer of Letters of Credit issued by it; (b) any other Lender or Affiliate of a Lender that may become an Issuing Bank pursuant to Sections 2.18(j) and (k) in its capacity as issuer of Letters of Credit issued by such Lender, and/or (c) collectively, all of the foregoing. For the avoidance of doubt, there may be one or more Issuing Banks and each Issuing Bank shall be an “Issuing Bank” hereunder from the date such Person becomes an Issuing Bank through the Revolving Maturity Date (unless otherwise consented to by the Borrowers in writing).

 

“Joinder Agreement” shall mean a joinder agreement substantially in the form of Exhibit F.

 

“Joint Lead Arrangers” shall mean Bank of America, N.A., Citibank, N.A., MUFG Bank, Ltd., Wells Fargo Bank, National Association, NYCB Specialty Finance Company, LLC, Bank OZK, Barclays Bank PLC, PNC Bank, National Association, Regions Bank, Sumitomo Mitsui Banking Corporation and Truist Securities, Inc., in each case in their respective capacity as a joint lead arranger and joint bookrunner hereunder.

 

“Landlord Access Agreement” shall mean a Landlord Access Agreement, substantially in the form of Exhibit G, or such other form as may reasonably be acceptable to the Administrative Agent.

 

“Last-Out Portion” shall mean, from time to time, the excess of Hedging Obligations incurred pursuant to Hedging Agreements entered into with Lenders or any of their Affiliates over the Hedging Reserves.

 

“Latest Maturity Date” shall mean, as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Incremental Revolving Loan, Incremental Revolving Commitment, Refinancing Revolving Loan or Refinancing Loan Commitment.

 

“LC Commitment” shall mean the commitment of an Issuing Bank to issue Letters of Credit pursuant to Section 2.18. The aggregate amount of the LC Commitments of all Issuing Banks in the aggregate shall be $1,275,000,000 as of the Effective Date plus the amount of any additional LC Commitments agreed to by the Borrowers and any existing or future Issuing Banks from time to time, but in no event shall (i) the aggregate amount of the LC Commitments of all Issuing Banks exceed the Revolving Commitment or (ii) the LC Commitment of any one Issuing Bank exceed the amount agreed to by such Issuing Bank with the Borrowers and the Administrative Agent, except as provided in Section 2.18(a). The LC Commitment of each Issuing Bank on the Effective Date shall be the amount set forth on Annex IV hereto.

 

“LC Disbursement” shall mean a payment or disbursement made by an Issuing Bank pursuant to a drawing under a Letter of Credit.

 

“LC Exposure” shall mean at any time the sum (without duplication) of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate principal amount of all Reimbursement Obligations outstanding at such time. The LC Exposure of any Revolving Lender at any time shall mean its Pro Rata Percentage of the aggregate LC Exposure at such time.

 

“LC Participation Fee” shall have the meaning assigned to such term in Section 2.05(c).

 

“LC Request” shall mean a request by Administrative Borrower in accordance with the terms of Section 2.18(b) and substantially in the form of Exhibit H, or such other form as shall be approved by the Administrative Agent.

 

“LCT Test Date” shall have the meaning assigned to such term in Section 1.06(b).

 

“Leases” shall mean any and all leases, subleases, tenancies, options, concession agreements, rental agreements, occupancy agreements, franchise agreements, access agreements and any other similar agreements (including all amendments, extensions, replacements, renewals, modifications and/or guarantees thereof), whether or not of record and whether now in existence or hereafter entered into, affecting the use or occupancy of all or any portion of any Real Property.

 

“Lender Default” shall mean (i) the refusal or failure of any Lender to make available its portion of any incurrence of Revolving Loans, which refusal or failure is not cured within two Business Days after the date of such refusal or failure unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s determination in good faith that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing); (ii) the failure of any Lender to pay over to the Administrative Agent, any Issuing Bank or any other Lender any other amount required to be paid by it hereunder (including the funding of any participation in any Letter of Credit) within two Business Days of the date when due; (iii) the notification by a Lender to the Borrowers or the Administrative Agent that such Lender does not intend or expect to comply with any of its funding obligations hereunder or a public statement by a Lender to that effect with respect to such Lender’s funding obligations hereunder; (iv) the failure by a Lender to confirm in a manner reasonably satisfactory to the Administrative Agent that such Lender will comply with such Lender’s obligations hereunder; or (v) the admission in writing by a Distressed Person that it is insolvent or such Distressed Person becoming subject to a Lender-Related Distress Event or a Bail-In Action.

 

“Lender-Related Distress Event” shall mean, with respect to any Lender, that such Lender or any Person that directly or indirectly controls such Lender (each, a “Distressed Person”), as the case may be, other than via Undisclosed Administration, is or becomes subject to a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver, or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or such Distressed Person, or any Person that directly or indirectly controls such Distressed Person is subject to a forced liquidation or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Person or its assets to be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interests in any Lender or any Person that directly or indirectly controls such Lender by a Governmental Authority or an instrumentality thereof.

 

“Lenders” shall mean (a) the financial institutions that have become a party hereto upon execution of this Agreement on the Effective Date and (b) any financial institution that has become a party hereto pursuant to an Increase Joinder or an Assignment and Assumption, other than, in each case, any such financial institution that has ceased to be a party hereto pursuant to an Assignment and Assumption. Unless the context clearly indicates otherwise, the term “Lenders” shall include the Swingline Lender.

 

“Letter of Credit” shall mean any (i) Standby Letter of Credit and (ii) Commercial Letter of Credit, in each case, issued or to be issued by an Issuing Bank for the account of a Borrower on behalf of itself or any of its Subsidiaries pursuant to Section 2.18. The Letters of Credit set forth on Schedule 1.01(a) outstanding on the Effective Date shall be deemed to have been issued by the respective Issuing Bank set forth on such Schedule pursuant to this Agreement and to constitute “Letters of Credit” for all purposes hereunder.

 

“Letter of Credit Expiration Date” shall mean the date which is five (5) Business Days prior to the Revolving Maturity Date.

 

“Lien” shall mean, with respect to any property, (a) any mortgage, deed of trust, lien, pledge, encumbrance, charge, collateral assignment, hypothecation, security interest or encumbrance of any kind or any arrangement effective to provide priority or preference, or any filing of any financing statement under the UCC, in each case, effective to provide priority or preference over unsecured creditors or any other similar notice of lien under any similar notice or recording statute of any Governmental Authority, including any easement, right-of-way or other encumbrance on title to Real Property, in each of the foregoing cases whether voluntary or imposed by law; (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such property; and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

 

“Limited Condition Transaction” means any Permitted Acquisition or other Investment, repayment of Indebtedness or Dividend, in each case, the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.

 

“Line Cap” shall mean, as of any date of determination, the lesser of (a) the then current aggregate Revolving Commitments of the Lenders and (b) the Borrowing Base, in each case, as of such date of determination.

 

“Loan Documents” shall mean this Agreement, the Letters of Credit, the Intercreditor Agreements, the Notes (if any), the Security Documents and the Fee Letter.

 

“Loan Parties” shall mean the Borrowers and the Subsidiary Guarantors.

 

“Loans” shall mean, as the context may require, a Revolving Loan or a Swingline Loan (and shall include any Loans contemplated by Section 2.20).

 

“Margin Stock” shall have the meaning assigned to such term in Regulation U.

 

“Material Adverse Effect” shall mean (a) a material adverse effect on the business, property, results of operations or financial condition of Borrowers and their Subsidiaries, taken as a whole; (b) a material adverse effect on the ability of the Loan Parties to fully perform their respective payment obligations under any Loan Document; or (c) a material adverse effect on the rights of or benefits or remedies available to the Lenders, the Collateral Agent or the Administrative Agent under any Loan Document; provided, however, that in no event shall any effect that results from any of the following be deemed to constitute a Material Adverse Effect: (i) this Agreement, the Loan Documents or any actions taken in compliance with this Agreement or the Loan Documents, or the pendency or announcement thereof; (ii) changes or conditions generally affecting the industry in which the Borrowers and their Subsidiaries operate; (iii) changes in general economic, regulatory or political conditions (including interest rate, commodities and currency fluctuations); (iv) changes in law or Environmental Laws; (v) changes in accounting principles; or (vi) acts of war, insurrection, sabotage or terrorism, unless, in the case of each of the clauses (iii)-(vi) above, such change has a disproportionate effect on the Borrowers and their Subsidiaries or their assets as compared to the effect on other participants in the industry or their assets, as the case may be.

 

“Material Indebtedness” shall mean any Indebtedness (other than the Loans, Letters of Credit) or Hedging Obligations of Holdings or any of its Subsidiaries (other than Excluded Subsidiaries) in an aggregate outstanding principal amount exceeding $100,000,000. For purposes of determining Material Indebtedness, the “principal amount” in respect of any Hedging Obligations of any Loan Party at any time shall be the maximum aggregate amount (giving effect to any netting or set-off agreements) that such Loan Party would be required to pay if the related Hedging Agreement were terminated at such time.

 

“Maximum Rate” shall have the meaning assigned to such term in Section 10.14.

 

“Mexican Entity” shall have the meaning assigned to such term in Section 6.01(ff).

 

“MLP Drop Down and Railcar Assets” means (i) the assets of Holdings, the Borrowers and/or their Subsidiaries identified on Schedule 1.01(c) and (ii) the additional assets (whether real or personal, tangible or intangible or otherwise) relating to gathering, transporting and storing crude oil and to distributing, transporting and storing refined products of Holdings, the Borrowers and/or their Subsidiaries identified by the Administrative Borrower from time to time in writing to the Administrative Agent as “MLP Drop Down and Railcar Assets”.

 

“MNPI” shall have the meaning assigned to such term in Section 10.01(d).

 

“Multiemployer Plan” shall mean a multiemployer plan within the meaning of Section 4001(a)(3) (a) to which any Company or any ERISA Affiliate is then making or accruing an obligation to make contributions; (b) to which any Company or any ERISA Affiliate has within the preceding five plan years made contributions; or (c) with respect to which any Company could incur liability.

 

“Net Cash Proceeds” shall mean:

 

(a)          with respect to any Asset Sale (other than any issuance or sale of Equity Interests) or Casualty Event, the cash proceeds actually received by Holdings or any of its Subsidiaries (other than an Excluded Subsidiary) (including cash proceeds subsequently received (as and when received by Holdings or any of its Subsidiaries (other than an Excluded Subsidiary)) in respect of non-cash consideration initially received) net of (i) selling expenses (including reasonable brokers’ fees or commissions, legal, accounting and other professional, advisory, consulting, investment banking and transactional fees, transfer and similar taxes and Borrowers’ good faith estimate of income taxes actually paid or payable in connection with such sale); (ii) amounts provided as a reserve, in accordance with GAAP, against (x) any liabilities under any indemnification obligations associated with such Asset Sale or (y) any other liabilities retained by Holdings or any of its Subsidiaries associated with the properties sold in such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall then constitute Net Cash Proceeds); (iii) Borrowers’ good faith estimate of payments required to be made with respect to unassumed liabilities relating to the properties sold within 270 days of such Asset Sale (provided that, to the extent such cash proceeds are not used to make payments in respect of such unassumed liabilities within 270 days of such Asset Sale, such cash proceeds shall then constitute Net Cash Proceeds); (iv) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness or indebtedness which is secured by a Lien on the properties sold in such Asset Sale (so long as such Lien was permitted to encumber such properties under the Loan Documents at the time of such sale) and which is repaid with such proceeds (other than any such Indebtedness or indebtedness assumed by the purchaser of such properties); (v) any survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees in respect of any such Asset Sale; and (vi) taxes paid or reasonably estimated to be actually payable in connection therewith; and

 

(b)          with respect to any Equity Issuance or any other issuance or sale of Equity Interests by Parent, Holdings or any of Holdings’ Subsidiaries, the cash proceeds thereof, net of customary fees, commissions, costs and other expenses incurred in connection therewith.

 

“Non-Guarantor Subsidiary” shall mean each Subsidiary that is not a Subsidiary Guarantor (including any Excluded Subsidiary).

 

“Notes” shall mean any notes evidencing the Revolving Loans or Swingline Loans issued pursuant to this Agreement, if any, substantially in the form of Exhibit K-1, or K-2.

 

“Obligations” shall mean (a) obligations of Borrowers and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by Borrowers and the other Loan Parties under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of Reimbursement Obligations, interest thereon and obligations to provide cash collateral and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Borrowers and the other Loan Parties under this Agreement and the other Loan Documents, and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of Borrowers and the other Loan Parties under or pursuant to this Agreement and the other Loan Documents.

 

“OFAC” shall have the meaning set forth in the definition of “Embargoed Person.”

 

“Officers’ Certificate” shall mean a certificate executed by a Responsible Officer or, with respect to certificates other than as to financial, borrowing base and/or other collateral matters, any other officer of a Loan Party, in each case in his or her official (and not individual) capacity.

 

“Off-Take Agreements” shall mean (i) any off-take agreement with respect to hydrocarbon inventory or products and (ii) other similar hydrocarbon inventory or products agreements or arrangements.

 

“Oil Supply Agreements” shall mean any agreement entered into to provide for the supply of oil or other similar hydrocarbons.

 

“Organizational Documents” shall mean, with respect to any person, (i) in the case of any corporation, the certificate of incorporation and by-laws (or similar documents) of such person, (ii) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such person, (iv) in the case of any general partnership, the partnership agreement (or similar document) of such person and (v) in any other case, the functional equivalent of the foregoing.

 

“Original Effective Date” shall have the meaning assigned to such term in the recitals hereto.

 

“Other Connection Taxes” means, with respect to the Administrative Agent, any Lender, or any Issuing Bank, Taxes imposed as a result of a present or former connection between such Administrative Agent, Lender, or Issuing Bank and the jurisdiction imposing such Tax (other than connections arising from such Administrative Agent, Lender, or Issuing Bank having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

“Other Taxes” shall mean all present or future stamp or documentary Taxes or any other excise, property or similar Taxes, charges or levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document (and any interest, additions to Tax or penalties applicable thereto) except any such Taxes that are Other Connection Taxes imposed with respect to an assignment or a participation (other than an assignee pursuant to a request by Administrative Borrower under Section 2.16).

 

“Overadvance” shall have the meaning assigned to such term in Section 2.02(f).

 

“Paid But Unexpired Standby Letters of Credit” shall mean during a Post Supplier Payment Period, the undrawn amount under an outstanding Standby Letter of Credit issued to support the purchase of hydrocarbon Inventory of a Borrower as of such date of determination where the supplier of such hydrocarbon Inventory in connection with which such Standby Letter of Credit was specifically issued has been paid in full and therefore is not entitled to draw on such Standby Letter of Credit, in whole or in part.

 

“Parent” shall mean PBF Energy Company LLC, a Delaware limited liability company.

 

“Participant” shall have the meaning assigned to such term in Section 10.04(d).

 

“Participant Register” shall have the meaning assigned to such term in Section 10.04(d).

 

“Paulsboro Facility” shall mean Paulsboro’s petroleum refinery and all related assets and properties located in Paulsboro, New Jersey.

 

“Payment in Full” shall mean the payment in full of all Secured Obligations (other than (A) Unasserted Contingent Obligations and (B) obligations and liabilities under Hedging Agreements and Treasury Services Agreements as to which arrangements satisfactory to the applicable counterparties to each such agreement shall have been made), the cancellation or termination of the Commitments and the cancellation or expiration of all outstanding Letters of Credit (or the cash collateralization or back-stopping thereof on terms reasonably satisfactory to the Administrative Agent and the relevant Issuing Bank), and the terms “Pay in Full” and “Paid in Full” shall have meanings correlative thereto.

 

“PBF Finance” shall mean PBF Finance Corporation, a Delaware corporation.

 

“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

 

“Perfection Certificates” shall mean that certain Perfection Certificate delivered by the Borrowers to the Administrative Agent on the Effective Date, substantially in the form of Exhibit L-1 or any other form approved by the Administrative Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.

 

“Perfection Certificate Supplement” shall mean a certificate supplement substantially in the form of Exhibit L-2 or any other form approved by the Administrative Agent.

 

“Permitted Acquisition” shall mean any transaction for the (a) acquisition of all or substantially all of the property of any person, or of any business or division, or business line or unit of any person; or (b) acquisition (including by merger or consolidation) of the Equity Interests of any person that becomes a Subsidiary after giving effect to such transaction; provided that each of the following conditions shall be met:

 

(i)          no Specified Event of Default then exists or would result therefrom (and at the time of signing of the relevant Acquisition Agreement no Event of Default then exists or would result therefrom);

 

(ii)       subject to Section 1.06(b), after giving effect to such transaction (or, at the option of the Administrative Borrower, at the time of signing of the relevant Acquisition Agreement), Pro Forma Excess Availability is greater than the Threshold Amount;

 

(iii)        [Reserved];

 

(iv)       the person or business to be acquired shall be, or shall be engaged in, a business of the type that Borrowers and the Subsidiaries are permitted to be engaged in under Section 6.12 and the property acquired in connection with any such transaction shall be made subject to the Lien of the Security Documents (in each case, except to the extent the equivalent assets of a Loan Party (such Loan Party as of the date hereof) are not required to be subject to the Lien of the Security Documents) to the extent required by Section 5.10 hereof and shall be free and clear of any Liens, other than Permitted Liens (in each case, to the extent, and within the time period set forth in Article V of this Agreement and only to the extent the Administrative Borrower has not made an election under Section 5.18(b));

 

(v)       the Board of Directors of the person to be acquired shall not have indicated publicly its opposition to the consummation of such acquisition (unless such opposition has been publicly withdrawn);

 

(vi)      all transactions in connection therewith shall be consummated without violation of any material applicable Requirements of Law, except, in each case, as would not constitute a breach or violation of the terms and conditions of the underlying Acquisition Agreement as in effect from time to time;

 

(vii)       [Reserved];

 

(viii)      No later than upon consummation of the transaction, Administrative Borrower shall have delivered to the Agents and the Lenders an Officers’ Certificate certifying that such transaction complies with this definition (which shall have attached thereto reasonably detailed backup data and calculations showing such compliance); and

 

(ix)      the business to be acquired and its Subsidiaries, shall, subject to an election by Administrative Borrower under Section 5.18(b), become Subsidiary Guarantors in accordance with Section 5.10.

 

“Permitted Amendment” shall mean an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent, setting forth the terms and conditions of Permitted Amendment Loans and/or Commitments made in accordance with and pursuant to Section 10.19 of this Agreement.

 

“Permitted Liens” shall have the meaning assigned to such term in Section 6.02.

 

“Permitted Receivables Sale” shall mean the sale of Designated Accounts Receivable in an aggregate amount not to exceed the Purchased Receivables Cap.

 

“Permitted Refinancing Indebtedness” means any Indebtedness of any Loan Party issued in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge, other Indebtedness of such Person (other than intercompany Indebtedness); provided that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest on such Indebtedness and the amount of all expenses and premiums, underwriting, issuance, commitment, syndication and other similar fees, costs and expenses incurred in connection therewith); (b) such Permitted Refinancing Indebtedness 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 Obligations, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (d)(i) if the stated maturity of the Indebtedness being refinanced is earlier than the Latest Maturity Date, the Permitted Refinancing Indebtedness has a stated maturity no earlier than the stated maturity of the Indebtedness being refinanced or (ii) if the stated maturity of the Indebtedness being refinanced is on or later than the Latest Maturity Date, the Permitted Refinancing Indebtedness has a stated maturity at least 91 days later than the Latest Maturity Date; and (e) (i) if such Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is secured, the terms of the security documents of such Permitted Refinancing Indebtedness shall be (taken as a whole) no more favorable to the secured parties in respect of such Permitted Refinancing Indebtedness than the terms of the security documents of such Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; or (ii) if such Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is unsecured, the obligations in respect of such Permitted Refinancing Debt shall be unsecured.

 

“Permitted Tax Distributions” shall mean payments, dividends or distributions by Borrowers, Subsidiary Guarantors and their respective Subsidiaries in order for any of their owners (direct or indirect) or any Loan Party to pay federal, state or local income and franchise taxes attributable to the income of Holdings or any of its Subsidiaries in an amount not to exceed the income and franchise tax liabilities that are attributable to them based upon the income of Holdings and its Subsidiaries, reduced by any such income taxes paid or to be paid directly by Holdings or its Subsidiaries.

 

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

 

“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA which is maintained or contributed to by any Company or its ERISA Affiliate or with respect to which any Company could incur liability (including under Section 4069 of ERISA).

 

“Post-Acquisition Period” means, with respect to any Permitted Acquisition or the conversion of any Excluded Subsidiary into a Subsidiary Guarantor, the period beginning on the date such Permitted Acquisition or conversion is consummated and ending on the last day of the fourth full consecutive fiscal quarter immediately following the date on which such Permitted Acquisition or conversion is consummated.

 

“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 hydrocarbon 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 sooner of (a) twenty one (21) days after the Full Payment Date or (b) the date the original of such Standby Letter of Credit is returned to the applicable Issuing Bank for cancellation with such instructions for cancellation as such issuer may require.

 

“PR Excise Tax Exposures” shall have the meaning assigned to such term in Section 2.22(i).

 

“Preferred Stock” shall mean, with respect to any person, any and all preferred or preference Equity Interests (however designated) of such person whether now outstanding or issued after the Effective Date.

 

“Private Side Communications” shall have the meaning assigned to such term in Section 10.01(d).

 

“Private Siders” shall have the meaning assigned to such term in Section 10.01(d).

 

“Pro Forma Adjustment” shall mean, for any Test Period that includes all or any part of a fiscal quarter included in any Post-Acquisition Period with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Subsidiary or the Consolidated EBITDA of the Borrowers, (a) the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, that is factually supportable and is expected to have a continuing impact and (b) additional good faith pro forma adjustments arising out of cost savings initiatives attributable to such transaction and additional costs associated with the combination of the operations of such Acquired Entity or Business or Converted Subsidiary with the operations of the Borrower and its Subsidiaries, in each case being given pro forma effect, that (i) have been realized or (ii) will be implemented following such transaction and are supportable and quantifiable and expected to be realized within the succeeding twenty-four (24) months and, in each case, including, but not limited to, (w) reduction in personnel expenses, (x) reduction of costs related to administrative functions, (y) reductions of costs related to leased or owned properties and (z) reductions from the consolidation of operations and streamlining of corporate overhead, taking into account, for purposes of determining such compliance, the historical financial statements of the Acquired Entity or Business or Converted Subsidiary and the consolidated financial statements of the Borrower and its Subsidiaries, assuming such Permitted Acquisition or conversion, and all other Permitted Acquisitions or conversions that have been consummated during the period, and any Indebtedness or other liabilities repaid in connection therewith had been consummated and incurred or repaid at the beginning of such period (and assuming that such Indebtedness to be incurred bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the interest rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination); provided, that, so long as such actions are initiated during such Post-Acquisition Period or such costs are incurred during such Post-Acquisition Period, as applicable, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, it may be assumed that such cost savings will be realizable during the entirety of such Test Period, or such additional costs, as applicable, will be incurred during the entirety of such Test Period; provided, further, that in no event shall such amounts calculated in reliance upon clause (b) above comprise more than 20% of Consolidated EBITDA.

 

“Pro Forma Basis” and “Pro Forma Effect” shall mean, with respect to compliance with any test hereunder for an applicable period of measurement, that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement (as of the last date in the case of a balance sheet item) in such test: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (i) in the case of an Asset Sale or other disposition of all or substantially all Equity Interests in any Subsidiary of the Borrowers (other than an Excluded Subsidiary) or any division, product line, or facility used for operations of the Borrowers or any of its Subsidiary Guarantors (other than an Excluded Subsidiary), shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction,” shall be included, (b) any retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by the Borrower or any of its Subsidiaries (other than Excluded Subsidiaries) in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided that, without limiting the application of the Pro Forma Adjustment pursuant to (A) above, the foregoing pro forma adjustments may be applied to any such test solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to events (including operating expense reductions) that are (as determined by the Borrower in good faith) (i) (x) attributable to such transaction, (y) expected to have a continuing impact on the Borrower and its Subsidiaries (other than an Excluded Subsidiary) and (z) factually supportable or (ii) otherwise consistent with the definition of Pro Forma Adjustment.

 

“Pro Forma Excess Availability” shall mean, for any date of determination, the average Excess Availability for 30 days prior to, and including, such date, after giving effect to the transactions occurring on such date, based on assumptions and calculations reasonably acceptable to the Administrative Agent; it being agreed that, for purposes of calculating Pro Forma Excess Availability, unless the Administrative Agent shall otherwise agree in its reasonable discretion, no Accounts or hydrocarbon Inventory to be acquired in an Investment otherwise permitted under Section 6.04 shall be included in the Borrowing Base until the Administrative Agent shall have (i) completed a preliminary desktop examination in scope and with results reasonably satisfactory to the Administrative Agent and (ii) other than to the extent that Pro Forma Excess Availability is tested at the signing of an Acquisition Agreement pursuant to clause (ii) of the definition of Permitted Acquisition, received (A) the results of a customary physical hydrocarbon Inventory count, in scope and with results reasonably satisfactory to Administrative Agent or (B) an interim working capital inventory statement delivered by the seller (and acceptable to the purchaser pursuant to the relevant purchase or acquisition agreement); provided, that, the amount of such hydrocarbon Inventory included in the Borrowing Base shall equal the least of the amount reflected in (1) such preliminary desktop examination, (2) to the extent required, such customary physical hydrocarbon Inventory count or (3) to the extent required, such interim working capital inventory statement; provided, that, other than to the extent that Pro Forma Excess Availability is tested at the signing of an Acquisition Agreement pursuant to clause (ii) of the definition of Permitted Acquisition, such a customary physical hydrocarbon Inventory count shall be conducted; provided, further, that, such Accounts or hydrocarbon Inventory shall only be included in the Borrowing Base for a period of 45 days (or such longer period as may be agreed to by the Administrative Agent, but in no event longer than 90 days) following the completion of such desktop examination and receipt of such physical hydrocarbon Inventory count; provided, further, that following the completion of a field examination by the Administrative Agent in scope and with results reasonably satisfactory to Administrative Agent such Accounts and hydrocarbon Inventory shall thereafter be included in the Borrowing Base.

 

“Pro Rata Percentage” of any Revolving Lender at any time shall mean the percentage of the total Revolving Commitments of all Revolving Lenders represented by such Lender’s Revolving Commitment; provided that for purposes of Section 2.19(b) and (c), “Pro Rata Percentage” shall mean the percentage of the total Revolving Commitments (disregarding the Revolving Commitment of any Defaulting Lender to the extent its Swingline Exposure or LC Exposure is reallocated to the non-Defaulting Lenders) represented by such Lender’s Revolving Commitment. If the Revolving Commitments have terminated or expired, the Pro Rata Percentage shall be determined based upon the Revolving Commitments most recently in effect, after giving effect to any assignments.

 

“property” shall mean any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity Interests or other ownership interests of any person and whether now in existence or owned or hereafter entered into or acquired, including all Real Property.

 

“Public Siders” shall have the meaning assigned to such term in Section 10.01(d).

 

“Purchase Money Obligation” shall mean, for any person, the obligations of such person in respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing all or any part of the purchase price of any property (including Equity Interests of any person) or the cost of installation, construction, development or improvement of any property and any refinancing thereof; provided, however, that (i) such Indebtedness is incurred within one year after such acquisition, installation, construction or improvement of such property by such person and (ii) the amount of such Indebtedness does not exceed 100% of the cost of such acquisition, installation, construction or improvement plus any costs, fees, expenses and other liabilities related thereto, as the case may be.

 

“Purchased Hydrocarbon Assets” shall have the meaning assigned to such term in Section 6.01(v).

 

“Purchased Receivables” means Designated Accounts Receivable purchased by a Receivables Purchaser under the terms of the Receivables Purchase Agreement for cash.

 

“Purchased Receivables Collateral” means all Purchased Receivables and Purchased Receivables Related Security.

 

“Purchased Receivables Cap” means an amount not to exceed $500,000,000 at any time outstanding of face principal amount (including, for the avoidance of doubt, any applicable sales or excise taxes thereon) of Purchased Receivables sold pursuant to the Receivables Purchase Agreement and as to which such principal amount has not been paid by the underlying obligor.

 

“Purchased Receivables Collections” means, collectively (without duplication), all cash collections, wire transfers, electronic wire transfers and other cash proceeds of the Purchased Receivables, and all cash proceeds of Purchased Receivables Related Security with respect to such Purchased Receivables.

 

“Purchased Receivables Related Security” means, with respect to any Purchased Receivable:

(a)          all of Holdings’ rights, remedies and obligations that relate to the collection or enforcement of such Purchased Receivable;

 

(b)          all credit insurance and other similar agreements or arrangements supporting or securing payment of such Purchased Receivable;

 

(c)         all other documents, purchase orders, invoices, books, records (other than with respect to such Purchased Receivable) and other information solely to the extent relating to such Purchased Receivable;

 

(d)        all identifiable Purchased Receivables Collections in respect of such Purchased Receivable (including amounts on deposit in the Receivables Collection Account identifiable as proceeds of Purchased Receivables Collateral); and

 

(e)          all proceeds of any of the foregoing.

 

“QFC Credit Support” shall have the meaning assigned to such term in Section 10.20.

 

“Qualified Capital Stock” of any person shall mean any Equity Interests of such person that are not Disqualified Capital Stock.

 

“Railcar Financing” shall have the meaning assigned to such term in Section 6.01.

 

“Real Property” shall mean, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned, leased or operated by any person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.

 

“Receivables Agent” means Citibank, N.A.

 

“Receivables Collection Account” means the account of Holdings maintained at Wells Fargo Bank, N.A. into which all Purchased Receivables Collections in respect of Purchased Receivables are paid by the applicable customer, which Receivables Collections Account shall, at all times, constitute a Blocked Account hereunder.

 

“Receivables Intercreditor Agreement” shall mean that certain Intercreditor Agreement, dated as of February 18, 2020, entered into by and among Collateral Agent, Receivables Agent and Holdings, as amended, restated, amended and restated, replaced, supplemented or otherwise modified from time to time.

 

“Receivables Purchase Agreement” shall mean that certain Receivables Purchase Agreement, dated as of February 18, 2020, entered into by and among Holdings, the financial institutions from time to time party thereto as Purchasers (each a “Receivables Purchaser” and collectively, the “Receivables Purchasers”) and Citibank, N.A. as Agent, as amended, restated, amended and restated, replaced, supplemented or otherwise modified from time to time to the extent not in violation of the terms of the Receivables Intercreditor Agreement.

 

“Receivables Purchase End Period” means the earlier of (i) an Event of Default has occurred and is continuing, or (ii) (I) any day on which Excess Availability is less than or equal to the greater of (a) 17.5% of the Line Cap or (b) $175,000,000 and (II) notice has been given by the Collateral Agent to the Receivables Agent of the occurrence of the circumstances described in subclause (ii); provided that any such Receivables Purchase End Period under subclause (ii) shall continue until Excess Availability shall have exceeded the greater of (a) 17.5% of the Line Cap or (b) $175,000,000, for a period of at least forty five (45) consecutive days.

 

“Receivables Purchaser” and “Receivables Purchasers” have the meanings assigned to such terms in the definition of “Receivables Purchase Agreement”.

 

“Refinancing Loan Commitments” has the meaning assigned to such term in Section 2.20(e).

 

“Refinancing Loans” has the meaning assigned to such term in Section 2.20(e).

 

“Register” shall have the meaning assigned to such term in Section 10.04(c).

 

“Regulation D” shall mean Regulation D of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

“Regulation S-X” shall mean Regulation S-X promulgated under the Securities Act.

 

“Regulation T” shall mean Regulation T of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

“Reimbursement Obligations” shall mean Borrowers’ obligations under Section 2.18(e) to reimburse LC Disbursements.

 

“Related Parties” shall mean, with respect to any person, such person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such person and of such person’s Affiliates.

 

“Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Material in, into, onto or through the Environment.

 

“Required Lenders” shall mean Lenders having more than 50% of the sum of all Loans outstanding, LC Exposure and unused Commitments; provided that the Loans, LC Exposure and unused Commitments held or deemed held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

“Requirements of Law” shall mean, collectively, any and all applicable requirements of any Governmental Authority including any and all laws, judgments, orders, executive orders, decrees, ordinances, rules, regulations, statutes or case law.

 

“Rescindable Amount” shall have the meaning assigned to such term in Section 2.14(e).

 

“Reserves” shall be determined by the Collateral Agent from time to time, acting reasonably and in good faith, pursuant to standards and practices generally applied by the Collateral Agent (from the standpoint of an asset-based lender) to borrowing base debtors in the refining markets, and shall not limit Borrowing Availability on account of conditions or circumstances already addressed in the eligibility criteria for the assets in the Borrowing Base and/or otherwise result in a duplicative adverse impact on Borrowing Availability under the Borrowing Base and shall not include Hedging Reserves. Once the Reserves have been so determined by the Collateral Agent, the Reserves will not be changed in a manner adverse to the Borrowers except to address circumstances, conditions, events or contingencies underlying the determination of the Reserves that adversely impact the value of the Borrowing Base, and then only in a manner and to an extent that bears a reasonable relationship to changes in circumstances, conditions, events or contingencies; provided that circumstances, conditions, events or contingencies arising prior to the Effective Date of which the Collateral Agent have actual knowledge prior to the Effective Date shall not be the basis for any establishment or modification of any Reserve unless such circumstances, conditions, events or contingencies shall have changed since the Effective Date. Any Reserves established by the Collateral Agent with respect to the value of Eligible Positive Exchange Agreement Balances as provided in the proviso of such definition shall not be duplicative of any other Reserve. For the avoidance of doubt, “Reserves” shall include (i) any Senior Notes Reserve and (ii) any other Reserves established by the Collateral Agent, acting reasonably and in good faith, pursuant to standards and practices generally applied by the Collateral Agent (from the standpoint of an asset-based lender) with respect to cash collections relating to Purchased Receivables and amounts for which Holdings is responsible relating to dilution and other matters which would reasonably be expected to adversely affect the Borrowing Base (from the standpoint of an asset-based lender).

 

“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority

 

“Response” shall mean (a) “response” as such term is defined in CERCLA, 42 U.S.C. § 9601(24), and (b) all other actions required by any Governmental Authority or voluntarily undertaken to (i) clean up, remove, treat, abate or in any other way address any Hazardous Material in the Environment; (ii) prevent the Release or threat of Release, or minimize the further Release, of any Hazardous Material; or (iii) perform studies and investigations in connection with, or as a precondition to, or to determine the necessity of the activities described in, clause (i) or (ii) above.

 

“Responsible Officer” of any person shall mean any executive officer or Financial Officer of such person and any other officer or similar official thereof with responsibility for the administration of the obligations of such person in respect of this Agreement.

 

“Revolving Availability Period” shall mean the period from and including the Effective Date to but excluding the earlier of (A) the Business Day preceding the Revolving Maturity Date and (B) the date of termination of the Revolving Commitments.

 

“Revolving Borrowing” shall mean a Borrowing comprised of Revolving Loans.

 

“Revolving Commitment” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans hereunder, up to the amount set forth on Annex IV hereto or by an Increase Joinder, or in the Assignment and Assumption pursuant to which such Lender assumed its Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. The aggregate amount of the Lenders’ Revolving Commitments on the Effective Date is $3,500,000,000 (the Loans thereunder, the “Initial Revolving Loans”).

 

“Revolving Credit Priority Collateral” shall mean (i) all deposit accounts of any Loan Party (other than Excluded Accounts) as well as all funds on deposit therein, (ii) all Accounts of any Loan Party, (iii) all hydrocarbon Inventory of any Loan Party, (iv) all related instruments, letters of credit, letter of credit rights, credit support, insurance, chattel paper, documents, supporting obligations, related payment intangibles, cash, cash equivalents, other related rights, claims, causes of action, books and records, accounting systems and other similar personal property of any Loan Party and (v) any proceeds or products of any of the foregoing. For the avoidance of doubt, “Revolving Credit Priority Collateral” shall not include (x) any plant, property or equipment of any Loan Party or (y) any Purchased Receivables Collateral.

 

“Revolving Exposure” shall mean, with respect to any Lender at any time (without duplication), the aggregate principal amount at such time of all then outstanding Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure, plus the aggregate amount at such time of such Lender’s Swingline Exposure.

 

“Revolving Lender” shall mean a Lender with a Revolving Commitment.

 

“Revolving Loan” shall mean a Loan made by the Lenders to Borrowers pursuant to Section 2.02. Each Revolving Loan shall either be an ABR Revolving Loan or a Term SOFR Loan.

 

“Revolving Maturity Date” shall mean with respect to (i) the Revolving Commitments and the Loans thereunder, the date which is five (5) years after the Effective Date, and (ii) any Refinancing Loan Commitments and the Refinancing Loans thereunder, the date set forth in the amendment giving effect thereto.

 

“Sale and Leaseback Transaction” has the meaning assigned to such term in Section 6.03.

 

“Sarbanes-Oxley Act” shall mean the United States Sarbanes-Oxley Act of 2002, as amended, and all rules and regulations promulgated thereunder.

 

“Secured Obligations” shall mean (a) the Obligations, (b) other than to the extent prohibited by applicable law (including, without limitation, the Dodd Frank Wall Street Reform and Consumer Protection Act), the due and punctual payment and performance of all obligations of Borrowers and the other Loan Parties under each Hedging Agreement entered into with any counterparty that is a Secured Party; provided, however, that such obligations shall have been designated as Secured Obligations in a writing from the Borrowers to the Administrative Agent and (c) the due and punctual payment and performance of all obligations of Borrowers and the other Loan Parties (including overdrafts and related liabilities) under each Treasury Services Agreement entered into with any counterparty that is a Secured Party.

 

“Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral Agent, each other Agent, each Issuing Bank, the Lenders and each counterparty to a (a) Treasury Services Agreement if at the time of entering into such Treasury Services Agreement such person was an Agent or a Lender or an Affiliate of an Agent or a Lender and such person executes and delivers to the Administrative Agent a letter agreement in form and substance acceptable to the Administrative Agent pursuant to which such person (i) appoints the Collateral Agent as its agent under the applicable Loan Documents and (ii) agrees to be bound by the provisions of Sections 9.03, 10.03 and 10.09 as if it were a Lender or (b) Hedging Agreement if at the time of entering into such Hedging Agreement such Person has been designated as a Secured Party in a writing from the Borrowers to the Administrative Agent and such Person executes and delivers to the Administrative Agent a letter agreement in form and substance acceptable to the Administrative Agent pursuant to which such person (i) appoints the Collateral Agent as its agent under the applicable Loan Documents and (ii) agrees to be bound by the provisions of Sections 9.03, 10.03 and 10.09 as if it were a Lender.

 

“Securities Act” shall mean the Securities Act of 1933.

 

“Security Agreement” shall mean that certain Security Agreement, dated as of the Original Effective Date, among the Loan Parties party thereto and the Administrative Agent for the benefit of the Secured Parties, as amended, restated, supplemented, reaffirmed or otherwise modified from time to time.

 

“Security Agreement Collateral” shall mean all property pledged, granted or reaffirmed as collateral pursuant to the Security Agreement (a) on the Original Effective Date or (b) thereafter pursuant to Section 5.10 (it being agreed and understood that such Security Agreement Collateral shall be limited in any event to Revolving Credit Priority Collateral).

 

“Security Documents” shall mean the Security Agreement, and each other security document or pledge agreement delivered in accordance with applicable local or foreign law to grant a valid, perfected security interest in any property as collateral for the Secured Obligations, and all UCC or other financing statements or instruments of perfection required by this Agreement, the Security Agreement or any other such security document or pledge agreement to be filed with respect to the security interests in property and fixtures created pursuant to the Security Agreement and any other document or instrument utilized to pledge or grant or purport to pledge or grant a security interest or lien on any property as collateral for the Secured Obligations.

 

“Senior Notes Reserve” means a Reserve in an amount equal to the portion, if any, of the then outstanding amount of all obligations under the 2028 Senior Notes that has not been repaid or refinanced (with a maturity date of such refinanced notes more than ninety (90) days after the Revolving Maturity Date), established no earlier than the date that is ninety one (91) days prior to the applicable maturity date thereof.

 

“SOFR” shall mean the secured overnight financing rate as administered by FRBNY (or a successor administrator).

 

“SOFR Adjustment” shall mean 0.10%.

 

“Specified Event of Default” shall mean an Event of Default existing pursuant to Section 8.01(a), (b), (g) or (h) of this Agreement.

 

“Specified Transaction” means any Investment, Asset Sale or other disposition outside of the ordinary course of business, incurrence or repayment of Indebtedness, Dividend, Subsidiary designation as an Excluded Subsidiary or as a Subsidiary Guarantor (as applicable), or Incremental Revolving Commitments that by the terms of this Agreement requires such test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect”; provided that any such Specified Transaction (other than a Dividend) having an aggregate value of less than $25,000,000 shall not be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”

 

“Standby Letter of Credit” shall mean any standby letter of credit.

 

“Subordinated Debt Payment” shall have the meaning assigned to such term in Section 6.10(a).

 

“Subordinated Indebtedness” shall mean Indebtedness of any Loan Party that is by its terms subordinated in right of payment to the Obligations of Borrowers and the Subsidiary Guarantors, as applicable, on terms reasonably acceptable to the Administrative Agent.

 

“Subsidiary” shall mean, with respect to any person (the “parent”) at any date, (i) any person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, (ii) any other corporation, limited liability company, association or other business entity of which securities or other ownership interests representing more than 50% of the voting power of all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors thereof are, as of such date, owned, controlled or held by the parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general partner or the managing general partner of which is the parent and/or one or more subsidiaries of the parent or (b) the only general partners of which are the parent and/or one or more subsidiaries of the parent and (iv) any other person that is otherwise Controlled by the parent and/or one or more subsidiaries of the parent. Unless the context requires otherwise, “Subsidiary” refers to a Subsidiary of a Borrower.

 

“Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 1.01(d), and each other Subsidiary that is or becomes a party to this Agreement pursuant to Section 5.10 and that has not been designated by the Administrative Borrower, in accordance with Section 5.18(b), as an Excluded Subsidiary and in any event, excluding any Foreign Subsidiary.

 

“Successor Rate” shall have the meaning assigned to such term in Section 2.11(b).

 

“Supermajority Lenders” shall mean Lenders having more than 66 2/3 % of the sum of all Loans outstanding, LC Exposure and unused Commitments; provided that the Loans, LC Exposure and unused Commitments held or deemed held by any Defaulting Lender shall be excluded for purposes of making a determination of Supermajority Lenders.

 

“Supported QFC” shall have the meaning assigned to such term in Section 10.20(a).

 

“Suppressed Availability” shall mean as of any date of determination the amount, if any, by which the Borrowing Base on such date exceeds the aggregate Commitments of all Lenders then outstanding.

 

“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.

 

“Swingline Commitment” shall mean the commitment of the Swingline Lender to make loans pursuant to Section 2.17, as the same may be reduced from time to time pursuant to Section 2.07 or Section 2.17. As of the Effective Date, the amount of the Swingline Commitment shall be $100,000,000 but shall in no event exceed the Revolving Commitments.

 

“Swingline Exposure” shall mean at any time the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate Swingline Exposure at such time.

 

“Swingline Lender” shall have the meaning assigned to such term in the preamble hereto.

 

“Swingline Loan” shall mean any loan made by the Swingline Lender pursuant to Section 2.17.

 

“Tax Return” shall mean all returns, statements, filings, attachments and other documents or certifications required to be filed in respect of Taxes.

 

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

 

“Term SOFR” shall mean, (a) for any Interest Period relating to a Term SOFR Loan, a per annum rate equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to such Interest Period, with a term equivalent to such Interest Period (or if such rate is not published prior to 11:00 a.m. on the determination date, the applicable Term SOFR Screen Rate on the U.S. Government Securities Business Day immediately preceding such date), plus the SOFR Adjustment for such Interest Period; and (b) for any Interest Period relating to an ABR Loan on any day, a per annum rate equal to the Term SOFR Screen Rate with a term of one month commencing that day; provided, that in no event shall Term SOFR be less than zero.

 

“Term SOFR Borrowing” shall mean a Borrowing comprised of Term SOFR Loans.

 

“Term SOFR Loan” shall mean Loan that bears interest based on clause (a) of the definition of Term SOFR.

 

“Term SOFR Screen Rate” shall mean the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Administrative Agent from time to time).

 

A “Test Period” at any time shall mean the period of four consecutive fiscal quarters of Borrowers most recently ended on or prior to such time (taken as one accounting period).

 

“Threshold Amount” shall mean (as of any date of determination) an amount equal to 12.5% of the Line Cap.

 

“Threshold Basket Amount” shall mean (as of any date of determination) an amount equal to 17.5% of the Line Cap.

 

“Toledo Facility” shall mean Toledo’s petroleum refinery and all related assets and properties located in Toledo, Ohio.

 

“Torrance Facility” shall mean Torrance’s petroleum refinery and all related assets and properties located in Torrance, California.

 

“Total Assets” shall mean the total assets of Holdings and its Subsidiaries on a consolidated basis, as shown on the most recent consolidated balance sheet of Holdings and its Subsidiaries.

 

“Transactions” shall mean, collectively, the transactions to occur on or prior to the Effective Date pursuant to this Agreement, including (a) the execution, delivery and performance of this Agreement and the borrowings hereunder; and (b) the payment of any and all fees, costs and expenses to be paid on or prior to the Effective Date and owing in connection with the foregoing.

 

“Transferred Guarantor” shall have the meaning assigned to such term in Section 7.09.

 

“Treasury Services Agreement” shall mean any agreement relating to treasury, depositary, credit cards (including commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”)), credit card processing services, debit cards, stored value cards, and cash management services or automated clearinghouse transfer of funds.

 

“Trigger Event” shall mean either (i) an Event of Default has occurred and is continuing or (ii) Excess Availability is less than (A) the Threshold Amount for a period of time greater than five (5) consecutive Business Days or (B) $100,000,000 at any time; provided that such Trigger Event shall continue until (i) no Event of Default exists and (ii) Excess Availability shall have exceeded the Threshold Amount and $100,000,000 for a period of at least thirty (30) consecutive days.

 

“Type,” when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to Term SOFR or the Alternate Base Rate.

 

“UCC” shall mean the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.

 

“UK Financial Institution” shall mean any BRRD Undertaking (as defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person subject to 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.

 

“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

“Unasserted Contingent Obligations” means taxes, costs, indemnifications, reimbursements, damages and other claims or liabilities in respect of which no written assertion of liability or no claim or demand for payment has been made at such time.

 

“Undisclosed Administration” means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.

 

“Unfinanced Capital Expenditures” shall mean, with respect to any Person and for any period, Capital Expenditures made by such Person during such period and not financed from the proceeds of Indebtedness, Equity Issuances, Casualty Events or Asset Sales or other dispositions of assets.

 

“United States” shall mean the United States of America.

 

“U.S. Government Securities Business Day” shall mean any Business Day, except any day on which the Securities Industry and Financial Markets Association, New York Stock Exchange or FRBNY is not open for business because the day is a legal holiday under New York law or U.S. federal law.

 

“USA PATRIOT Act” shall have the meaning set forth in the definition of “Anti-Terrorism Laws.”

 

“Voting Stock” shall mean, with respect to any person, any class or classes of Equity Interests pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the Board of Directors of such person.

 

“Wholly Owned Subsidiary” shall mean, as to any person, (a) any corporation 100% of whose capital stock (other than directors’ qualifying shares) is at the time owned by such person and/or one or more Wholly Owned Subsidiaries of such person and (b) any partnership, association, joint venture, limited liability company or other entity in which such person and/or one or more Wholly Owned Subsidiaries of such person have a 100% equity interest at such time.

 

“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

“Write-Down and Conversion Powers” shall mean (a) the write-down and conversion powers of the applicable EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which powers are described in the EU Bail-In Legislation Schedule; or (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.

 

“Yield” shall mean, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, an interest rate floor or otherwise, in each case incurred or payable by the Borrowers generally to the Lenders with respect to such Indebtedness including any such original issue discount or upfront fees (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) payable to all Lenders providing such Indebtedness (but excluding structuring, arrangement, commitment or similar fees not shared with all such Lenders).

 

Section 1.02         Classification of Loans and Borrowings.

 

For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Term SOFR Loan”) or by Class and Type (e.g., a “Term SOFR Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a “Term SOFR Borrowing”) or by Class and Type (e.g., a “Term SOFR Borrowing”).

 

Section 1.03         Terms Generally.

 

The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any Loan Document, agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified or in effect (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any person shall be construed to include such person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall refer to such law or regulation as amended, modified or supplemented from time to time, and (f) 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.

 

Section 1.04         Accounting Terms; GAAP.

 

Except as otherwise expressly provided herein, all financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time to time and all terms of an accounting or financial nature shall be construed and interpreted in accordance with GAAP, as in effect on the date hereof unless otherwise agreed to by Borrowers and the Required Lenders. Lenders and Administrative Agent acknowledge and agree that Borrowers may, at their sole option and in their sole discretion, switch from a GAAP method of accounting to a method of accounting based on the Internal Financial Reporting Standards (“IFRS”) as promulgated from time to time by the International Accounting Standards Board (the “IASB”). From and after the date the Borrowers adopt IFRS, references herein and in any other Loan Document to GAAP shall mean and refer to IFRS. If at any time any such change from GAAP to IFRS would affect the computation of any financial covenant or other covenant set forth in any Loan Document, and the Administrative Borrower shall so request, the Administrative Agent and the Administrative Borrower shall negotiate in good faith to amend any such financial covenant or other such covenant or requirement to preserve the original intent thereof in light of such change in accounting principles; provided, that, until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change. Notwithstanding any other provision of this Agreement to the contrary, for all purposes during the term of this Agreement and any other Loan Document, each lease that pursuant to GAAP as in effect on the Original Effective Date would be classified as a capital lease or an operating lease will continue to be so classified, notwithstanding any change in characterization of that lease subsequent to the Original Effective Date based on changes to GAAP or interpretation of GAAP.

 

Section 1.05         Resolution of Drafting Ambiguities.

 

Each party hereto acknowledges and agrees that it was represented by counsel in connection with the execution and delivery of the Loan Documents to which it is a party, that it and its counsel reviewed and participated in the preparation and negotiation hereof and thereof and that any rule of construction to the effect that ambiguities are to be resolved against any party shall not be employed in the interpretation hereof or thereof.

 

Section 1.06         Pro Forma Calculations; Limited Condition Transactions.

 

(a)          Whenever a financial ratio or test is to be calculated on a Pro Forma Basis, or giving “Pro Forma Effect” the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which internal financial statements of the Borrowers are available (as determined in good faith by the Borrowers); provided that, the provisions of this sentence shall not apply for purposes of determining actual compliance with Section 6.09 (other than for the purpose of determining pro forma compliance with Section 6.09), which actual compliance shall be based on the financial statements delivered pursuant to Section 5.01(a) or (b), as applicable, for the relevant Test Period.

 

(b)         Notwithstanding anything herein to the contrary, for purposes of determining compliance with (1) any financial ratio or test or other basket that is based on a percentage of Consolidated EBITDA or Total Assets or (in connection with a Limited Condition Transaction, if applicable) a determination of Excess Availability or (2) any requirement that any representations and warranties are true and correct and/or that no Default or Event of Default has occurred, is continuing or would result therefrom):

 

(i)         in connection with any action being taken in connection with a Limited Condition Transaction, the Administrative Borrower may elect to have such compliance tested or otherwise determined (1) in the case of any Permitted Acquisition or other Investment, at the time of approval of such Investment or signing of the relevant Acquisition Agreement or other definitive agreement with respect thereto, (2) in the case of any Dividend, at the time of the irrevocable declaration of such Dividend and (3) in the case of any repayment of Indebtedness, at the time of delivery of irrevocable notice (which may be conditional) with respect thereto (each of the foregoing, an “LCT Test Date”), in each case, in lieu of the date of consummation of such Limited Condition Transaction; provided, however, that in the event of such election:

 

(A)          both immediately prior to and after giving effect to the consummation of such Limited Condition Transaction, no Specified Event of Default shall exist and be continuing or result therefrom;

 

(B)         in the case of any Incremental Revolving Commitment or any Incremental Revolving Loans thereunder that will be used concurrently with the initial provision of such commitment to finance any Limited Condition Transaction, then any requirement relating to accuracy of representations and warranties shall be limited to customary “SunGard” representations and warranties (including those with respect to the target contained in the acquisition or merger agreement to the extent failure of such representations and warranties to be true and correct permits the Borrowers or relevant Affiliate thereof not to consummate the transactions contemplated thereby);

 

(C)          such Limited Condition Transaction must close within two hundred seventy (270) days of the applicable LCT Test Date for Permitted Acquisitions or other Investments or within ninety (90) days for any other Limited Condition Transaction or, in the event that such Limited Condition Transaction closes more than two hundred seventy (270) days or ninety (90) days, as applicable, after such signing, such compliance shall also be required to be tested at the time of consummation of such Limited Condition Transaction;

 

(D)         in the event the Administrative Borrower notifies the Administrative Agent at such time that it intends to make a Revolving Borrowing (other than a Revolving Borrowing made on account of Incremental Revolving Commitments relating to Permitted Acquisitions) to fund such Limited Condition Transaction, the Administrative Agent shall record a Reserve against the lesser of the Borrowing Base and the aggregate Revolving Commitments (other than Incremental Revolving Commitments relating to such Permitted Acquisition) in the amount of such requested Borrowing until such time as such requested Borrowing is made to fund such Limited Condition Transaction or the Administrative Borrower notifies the Administrative Agent that the Limited Condition Transaction has terminated; provided that (x) such requested Borrowing shall not be subject, to the extent of such Reserve, to any condition to funding other than compliance with Section 4.02(d) hereof and that no Specified Event of Default shall have occurred and be continuing at the time of funding, and (y) if such Limited Condition Transaction has not been closed or terminated within two hundred seventy (270) days or within ninety (90) days, as applicable, of such LCT Test Date, then any obligations of the Lenders to fund such Limited Condition Transaction pursuant to the terms and conditions of this clause (D) and the recorded Reserve shall be terminated; and

 

(E)         in the event that the Administrative Borrower does not notify the Administrative Agent at such time of any intention to make a Revolving Borrowing (other than a Revolving Borrowing made on account of Incremental Revolving Commitments relating to Permitted Acquisitions) to fund such Limited Condition Transaction and the Administrative Borrower determines to make a Revolving Borrowing (other than a Revolving Borrowing made on account of Incremental Revolving Commitments relating to Permitted Acquisitions) to fund such Limited Condition Transaction on the date of the consummation thereof, such compliance solely for purposes of such Revolving Borrowing shall instead be tested as of date of the consummation thereof; and

 

(ii)        (A) Specified Transactions that have been made (x) during the applicable Test Period and (y) if applicable as described in Section 1.06(a), subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period and (B) if since the beginning of any applicable Test Period any Person that subsequently became a Subsidiary (other than an Excluded Subsidiary) or was merged, amalgamated or consolidated with or into the Borrower or any of its Subsidiaries (other than an Excluded Subsidiary) since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.06, then such financial ratio or test shall be calculated to give pro forma effect thereto in accordance with this Section 1.06.

 

(c)         In the event that the Borrowers or any Subsidiary (other than an Excluded Subsidiary) incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of any financial ratio or test (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period or (ii) subject to Section 1.06(a) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the first day of the applicable Test Period.

 

Section 1.07         Divisions.

 

Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a Division of or by a limited liability company or limited partnership, or an allocation of assets to a series of any such entity (or the unwinding of a Division or allocation) as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person.  Any Division of a Person shall constitute a separate Person hereunder.

 

ARTICLE II

 

THE CREDITS

 

Section 2.01         Commitments.

 

Subject to the terms and conditions and relying upon the representations and warranties herein set forth, each Lender agrees, severally and not jointly to make Revolving Loans to Borrowers, at any time and from time to time on or after the commencement of the Revolving Availability Period until the earlier of the Revolving Maturity Date and the termination of the Revolving Commitment of such Lender in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that will not result in such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment and provided that after making a Revolving Loan, the sum of the total Revolving Exposures shall not exceed the Line Cap.

 

Within the limits set forth above and subject to the terms, conditions and limitations set forth herein, Borrowers may borrow, pay or prepay and reborrow Revolving Loans from time to time.

 

Section 2.02         Loans.

 

(a)          Each Loan (other than Swingline Loans) shall be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their applicable Commitments; provided that the failure of any Lender to make its Loan shall not relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender). Except for Loans deemed made pursuant to Section 2.18(e)(i) and (ii), (x) ABR Loans comprising any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple of $1,000,000 and not less than $5,000,000 or (ii) equal to the remaining available balance of the applicable Commitments and (y) the Term SOFR Loans comprising any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple of $1,000,000 and not less than $5,000,000 or (ii) equal to the remaining available balance of the applicable Commitments.

 

(b)       Subject to Sections 2.11 and 2.12, each Borrowing shall be comprised entirely of ABR Loans or Term SOFR Loans as Administrative Borrower may request pursuant to Section 2.03. Each Lender may at its option make any Term SOFR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of Borrowers to repay such Loan in accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time; provided that Administrative Borrower shall not be entitled to request any Borrowing that, if made, would result in more than eight Term SOFR Borrowings outstanding hereunder at any one time. For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.

 

(c)          Except with respect to Swingline Loans, Administrative Agent shall endeavor to notify Lenders of each Notice of Borrowing by 1:00 p.m. on the proposed funding date for an ABR Loan or by 3:00 p.m. three Business Days before a proposed funding of a Term SOFR Loan. Except with respect to Loans deemed made pursuant to Section 2.18(e)(ii), each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account in New York City as the Administrative Agent may designate not later than 3:00 p.m., New York City time on the requested funding date (unless Administrative Agent’s notice is received after the times provided above, in which case Lender shall fund by 11:00 a.m. New York City time on the following Business Day), and the Administrative Agent shall promptly credit the amounts so received to an account as directed by Administrative Borrower in the applicable Borrowing Request maintained with the Administrative Agent or, if a Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met, return the amounts so received to the respective Lenders.

 

(d)         Unless the Administrative Agent shall have received notice from a Lender prior to the date (in the case of any Term SOFR Borrowing), or at least 2 hours prior to the time (in the case of any ABR Borrowing), of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent at the time of such Borrowing in accordance with paragraph (c) above, and the Administrative Agent may, in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If the Administrative Agent shall have so made funds available, then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, each such Lender and the Borrowers severally agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to Borrowers until the date such amount is repaid to the Administrative Agent at (i) in the case of Borrowers, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement, and Borrowers’ obligation to repay the Administrative Agent such corresponding amount pursuant to this Section 2.02(d) shall cease and be discharged thereby.

 

(e)        Notwithstanding any other provision of this Agreement, Borrowers shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Revolving Maturity Date.

 

(f)        The Administrative Agent shall not, without the prior consent of Required Lenders, make (and no Issuing Bank or Swingline Lender, as applicable, shall make) any Revolving Loans or provide any Letters of Credit to the Borrowers intentionally and with actual knowledge that such Revolving Loans, Swingline Loans, or Letters of Credit would be made when one or more of the conditions precedent to the making of the Loans hereunder cannot be satisfied except, that, the Administrative Agent may make (or cause to be made) such additional Revolving Loans or Swingline Loans or provide such additional Letters of Credit on behalf of the Lenders (each an “Overadvance” and collectively, the “Overadvances”), intentionally and with actual knowledge that such Loans or Letters of Credit will be made without the satisfaction of the foregoing conditions precedent, if the Administrative Agent deems it necessary or advisable in its discretion to do so, provided, that: (A) the total principal amount of the Overadvances to the Borrowers which the Administrative Agent may make or provide (or cause to be made or provided) after obtaining such actual knowledge that the conditions precedent have not been satisfied, shall not exceed at any time, the greater of (i) $100,000,000 and (ii) an amount equal to 10.0% of the Line Cap, and shall not cause the aggregate Revolving Exposures to exceed the Revolving Commitments of all of the Lenders or the Revolving Exposure of a Lender to exceed such Lender’s Revolving Commitment, (B) without the consent of the Required Lenders, no Overadvance shall be outstanding for more than sixty (60) days and (C) Administrative Agent shall be entitled to recover such funds, on demand from the Borrowers together with interest thereon for each day from the date such payment was due until the date such amount is paid to Administrative Agent at the interest rate provided for in Section 2.06(c); provided further that upon written notice by the Required Lenders, no further Overadvances shall be made. Each Lender shall be obligated to pay Administrative Agent the amount of its Pro Rata Percentage of any such Overadvance.

 

Section 2.03         Borrowing Procedure.

 

To request Loans, Administrative Borrower shall deliver, by hand delivery, telecopier or email attachment, a duly completed and executed Borrowing Request to the Administrative Agent (i) in the case of Term SOFR Loans in dollars, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing or (ii) in the case of ABR Loans, not later than 11:00 a.m., New York City time, on the date of the proposed Borrowing. Each Borrowing Request shall be irrevocable and shall specify the following information in compliance with Section 2.02:

 

(a)          the aggregate amount of such borrowing;

 

(b)          the date of such borrowing, which shall be a Business Day;

 

(c)          whether such borrowing is to be for ABR Loans or Term SOFR Loans;

 

(d)          in the case of Term SOFR Loans, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;

 

(e)        the location and number of Borrowers’ account to which funds are to be disbursed, which shall comply with the requirements of Section 2.02(c); and

 

(f)          that the conditions set forth in Sections 4.02(b)-(e) have been satisfied as of the date of the notice.

 

If no election as to the Type of Loans is specified, then the requested borrowing shall be for ABR Loans. If no Interest Period is specified with respect to any requested Term SOFR Loan, then Borrowers shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

 

Each Borrower hereby irrevocably appoints and constitutes Holdings, in its capacity as Administrative Borrower, as its agent to request and receive Loans and Letters of Credit pursuant to this Agreement in the name or on behalf of such Borrower. The Administrative Agent and Lenders may disburse the Loans to such bank account of Administrative Borrower or a Borrower or otherwise make such Loans to a Borrower and provide such Letters of Credit to a Borrower as Administrative Borrower may designate or direct, without notice to any other Borrower or Loan Party. Administrative Borrower hereby accepts the appointment by Borrowers to act as the agent of Borrowers and agrees to ensure that the disbursement of any Loans to a Borrower requested by or paid to or for the account of such Borrower, or the issuance of any Letter of Credit for a Borrower hereunder, shall be paid to or for the account of such Borrower. Each Borrower hereby irrevocably appoints and constitutes Administrative Borrower as its agent to receive statements on account and all other notices from the Agents and Lenders with respect to the Obligations or otherwise under or in connection with this Agreement and the other Loan Documents. Any notice, election, representation, warranty, agreement or undertaking by or on behalf of any other Borrower by Administrative Borrower shall be deemed for all purposes to have been made by such Borrower, as the case may be, and shall be binding upon and enforceable against such Borrower to the same extent as if made directly by such Borrower. No termination of the appointment of Administrative Borrower as agent as aforesaid shall be effective, except after ten (10) days’ prior written notice to Administrative Agent.

 

Section 2.04         Evidence of Debt; Repayment of Loans.

 

(a)         Promise to Repay. Borrowers hereby unconditionally promise to pay (i) to the Administrative Agent for the account of each Revolving Lender, the then unpaid principal amount of each Revolving Loan of such Revolving Lender on the Revolving Maturity Date and (ii) to the Swingline Lender, the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Maturity Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made; provided that on each date that a Revolving Borrowing is made, Borrowers shall repay all Swingline Loans that were outstanding on the date such Borrowing was requested.

 

(b)         Lender and Administrative Agent Records. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of Borrowers to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement. The Administrative Agent shall maintain records including (i) the amount of each Loan made hereunder, the Type and Class thereof and the Interest Period applicable thereto; (ii) the amount of any principal or interest due and payable or to become due and payable from Borrowers to each Lender hereunder; and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof. The entries made in the records maintained by the Administrative Agent and each Lender pursuant to this paragraph shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided that the failure of any Lender or the Administrative Agent to maintain such records or any error therein shall not in any manner affect the obligations of Borrowers to repay the Loans in accordance with their terms. In the event of any conflict between the records maintained by any Lender and the records of the Administrative Agent in respect of such matters, the records of the Administrative Agent shall be prima facie evidence of the information therein in the absence of manifest error.

 

(c)         Promissory Notes. Any Lender by written notice to Administrative Borrower (with a copy to the Administrative Agent) may request that Loans of any Class made by it be evidenced by a promissory note. In such event, Borrowers shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in the form of Exhibit K-1, or K-2, as the case may be. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

 

Section 2.05         Fees.

 

(a)         Commitment Fee. Borrowers agree to pay to the Administrative Agent for the account of each Lender a commitment fee (a “Commitment Fee”) equal to the Applicable Fee per annum on the average daily unused amount of each Commitment of such Lender during the period from and including the date hereof to but excluding the date on which such Commitment terminates. Accrued Commitment Fees shall be payable in arrears (A) on the first calendar day of April, July, October and January of each year, commencing on the first such date to occur after the date hereof, and (B) on the date on which such Commitment terminates. Commitment Fees shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing Commitment Fees with respect to Revolving Commitments, a Revolving Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender shall be disregarded for such purpose).

 

(b)         Administrative Agent Fees and Other Fees. Borrowers agree to pay (i) to the Administrative Agent, for its own account, the administrative fees payable in the amounts and at the times separately agreed upon between Borrowers and the Administrative Agent (the “Administrative Agent Fees”) and (ii) any other fees otherwise payable under the Fee Letter in the amounts, at the times and in the manner separately agreed to therein.

 

(c)         LC and Fronting Fees. Borrowers agree to pay (i) to the Administrative Agent for the account of each Revolving Lender a participation fee (“LC Participation Fee”) with respect to its participations in Letters of Credit, which shall accrue at a rate equal to the Applicable Letter of Credit Fee on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to Reimbursement Obligations) during the period from and including the Effective Date to but excluding the later of the date on which such Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to each applicable Issuing Bank a fronting fee (“Fronting Fee”), which shall accrue at a rate not to exceed 0.25% per annum on the average daily amount of the LC Exposure of such Issuing Bank (excluding any portion thereof attributable to Reimbursement Obligations) during the period from and including the Effective Date to but excluding the later of the date of termination of the Revolving Commitments and the date on which there ceases to be any LC Exposure of such Issuing Bank, as well as such Issuing Bank’s customary fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit in respect of Letters of Credit issued by such Issuing Bank or processing of drawings thereunder in respect of Letters of Credit issued by such Issuing Bank. Accrued LC Participation Fees and Fronting Fees shall be payable in arrears (i) on the first calendar day of April, July, October and January of each year, commencing on the first such date to occur after the Effective Date, and (ii) on the date on which the Revolving Commitments terminate. Any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Banks pursuant to this paragraph shall be payable within 10 days after demand therefor unless otherwise agreed with the applicable Issuing Bank. All LC Participation Fees and Fronting Fees shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

 

(d)       All Fees shall be paid on the dates due, in immediately available funds in dollars, to the Administrative Agent for distribution, if and as appropriate, among the Lenders and the Issuing Banks, except the Borrowers shall pay the Fronting Fees directly to the relevant Issuing Banks and Borrowers shall pay any other fees payable under the Fee Letter at the times and in the manner separately agreed to therein. Once paid, none of the Fees shall be refundable under any circumstances.

 

Section 2.06         Interest on Loans.

 

(a)         ABR Loans. Subject to the provisions of Section 2.06(c), the Loans comprising each ABR Borrowing, including each Swingline Loan, shall bear interest at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin in effect from time to time.

 

(b)         Term SOFR Loans. Subject to the provisions of Section 2.06(c), the Loans comprising each Term SOFR Borrowing shall bear interest at a rate per annum equal to Term SOFR for the Interest Period in effect for such Borrowing plus the Applicable Margin in effect from time to time.

 

(c)          Default Rate. Notwithstanding the foregoing, if there is a Specified Event of Default, any such amount of principal of or interest on any Loan or any fee or other amount payable by Borrowers hereunder that is past due shall, to the extent permitted by applicable law, bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue amounts constituting principal or interest on any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section 2.06 or (ii) in the case of any other outstanding and overdue amount, 2% plus (other than with respect to interest) the rate applicable to ABR Revolving Loans as provided in Section 2.06(a) (in either case, the “Default Rate”).

 

(d)          Interest Payment Dates. Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to Section 2.06(c) shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan or a Swingline Loan without a permanent reduction in Revolving Commitments), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Term SOFR Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

 

(e)          Interest Calculation. All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or Term SOFR shall be determined by the Administrative Agent in accordance with the provisions of this Agreement and such determination shall be prima facie evidence thereof absent manifest error.

 

Section 2.07         Termination and Reduction of Commitments.

 

(a)       Termination of Commitments. The Revolving Commitments, the Swingline Commitment and the LC Commitment shall automatically terminate on the Revolving Maturity Date.

 

(b)         Optional Terminations and Reductions. At their option, Borrowers may at any time terminate, or from time to time permanently reduce, the Commitments of any Class; provided that (i) each reduction of the Commitments of any Class shall be in an amount that is an integral multiple of $1,000,000 and not less than $2,000,000 and (ii) the Revolving Commitments shall not be terminated or reduced if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.10, the aggregate amount of Revolving Exposures would exceed the aggregate amount of Revolving Commitments.

 

(c)       Borrower Notice. Administrative Borrower shall notify the Administrative Agent in writing of any election to terminate or reduce the Commitments under Section 2.07(b) at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by Administrative Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of the Commitments delivered by Administrative Borrower may state that such notice is conditioned upon the effectiveness of another credit facility or the closing of a securities offering or other transaction which will result in the Payment in Full of the Obligations, in which case such notice may be revoked by Administrative Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments of such Class.

 

Section 2.08         Interest Elections.

 

(a)         Generally. Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Term SOFR Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, Borrowers may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Term SOFR Borrowing, may elect Interest Periods therefor, all as provided in this Section. Borrowers may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. Notwithstanding anything to the contrary, Borrowers shall not be entitled to request any conversion or continuation that, if made, would result in more than eight Term SOFR Borrowings outstanding hereunder at any one time. This Section shall not apply to Swingline Borrowings, which may not be converted or continued.

 

(b)         Interest Election Notice. To make an election pursuant to this Section, Administrative Borrower shall deliver, by hand delivery, telecopier or email attachment, a duly completed and executed Interest Election Request to the Administrative Agent not later than the time that a Borrowing Request would be required under Section 2.03 if Borrowers were requesting Loans of the Type resulting from such election to be made on the effective date of such election. Each Interest Election Request shall be irrevocable. Each Interest Election Request shall specify the following information in compliance with Section 2.02:

 

(i)         the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, or if outstanding Borrowings are being combined, allocation to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

 

(ii)          the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

 

(iii)         whether the resulting Borrowing is to be an ABR Borrowing or a Term SOFR Borrowing; and

 

(iv)        if the resulting Borrowing is a Term SOFR Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

 

If any such Interest Election Request requests a Term SOFR Borrowing but does not specify an Interest Period, then Borrowers shall be deemed to have selected an Interest Period of one month’s duration.

 

Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

(c)          Automatic Conversion to ABR Borrowing. If an Interest Election Request with respect to a Term SOFR Borrowing is not timely delivered prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing, the Administrative Agent or the Required Lenders may require, by notice to Administrative Borrower, that (i) no outstanding Borrowing may be converted to or continued as a Term SOFR Borrowing and (ii) unless repaid, each Term SOFR Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

 

Section 2.09         [Intentionally Omitted].

 

Section 2.10         Optional and Mandatory Prepayments of Loans.

 

(a)          Optional Prepayments. Borrowers shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, subject to the requirements of Section 2.10 and Section 2.13; provided that each partial prepayment shall be in an amount that is an integral multiple of $250,000 and not less than $1,000,000 or, if less, the outstanding principal amount of such Borrowing.

 

(b)          Revolving Loan Prepayments.

 

(i)          In the event of the termination of all the Revolving Commitments, Borrowers shall, on the date of such termination, repay or prepay all their outstanding Revolving Borrowings and all outstanding Swingline Loans and replace all outstanding Letters of Credit or cash collateralize all outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i).

 

(ii)         In the event of any partial reduction of the Revolving Commitments, then (x) at or prior to the effective date of such reduction, the Administrative Agent shall notify Borrowers and the Revolving Lenders of the sum of the Revolving Exposures after giving effect thereto and (y) if the sum of the Revolving Exposures would exceed the aggregate amount of Revolving Commitments after giving effect to such reduction, then Borrowers shall, on the date of such reduction, first, repay or prepay Swingline Loans, second, repay or prepay Revolving Borrowings and third, replace outstanding Letters of Credit or cash collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i), in an aggregate amount sufficient to eliminate such excess.

 

(iii)      In the event that the sum of all Lenders’ Revolving Exposures exceeds either (A) the Borrowing Base then in effect or (B) the Revolving Commitments then in effect, Borrowers shall, without notice or demand, promptly first, repay or prepay Swingline Loans, second, repay or prepay Revolving Borrowings, and third, cash collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i), in an aggregate amount sufficient to eliminate such excess.

 

(iv)       Except as provided in Section 2.18(a), in the event that the aggregate LC Exposure exceeds the LC Commitment then in effect, Borrowers shall, without notice or demand, promptly replace outstanding Letters of Credit or cash collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i), in an aggregate amount sufficient to eliminate such excess.

 

(v)         In the event that the aggregate Swingline Exposure exceeds the Swingline Commitment then in effect Borrowers shall, without notice or demand, promptly repay or prepay Swingline Loans in an aggregate amount sufficient to eliminate such excess.

 

(c)         Asset Sales. Subject to the terms and conditions of the applicable Intercreditor Agreement, not later than five Business Days following the receipt of any Net Cash Proceeds of any Asset Sale of Revolving Credit Priority Collateral by Holdings or any of its Subsidiaries, Borrowers shall make prepayments in accordance with Section 2.10(e) in an aggregate amount equal to the lesser of (i) the then outstanding Loans and (ii) 100% of such Net Cash Proceeds.

 

(d)         Casualty Events. Subject to the terms and conditions of the applicable Intercreditor Agreement, not later than five Business Days following the receipt of any Net Cash Proceeds from a Casualty Event involving Revolving Credit Priority Collateral (other than Certain Hydrocarbon Assets and Intermediate Products), by Holdings or any of its Subsidiaries, Borrowers shall make prepayments in accordance with Section 2.10(e) in an aggregate amount equal to the lesser of (i) the then outstanding Loans and (ii) 100% of such Net Cash Proceeds.

 

(e)          Application of Prepayments. Prior to any optional or mandatory prepayment hereunder, Borrowers shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to Section 2.10(f), subject to the provisions of this Section 2.10 (e). Subject to Section 8.02, and so long as no Event of Default shall then exist and be continuing, all mandatory prepayments shall be applied as follows: first, to the Swingline Loans until the same has been reduced to zero (0); second, to the Revolving Loans until the same has been reduced to zero (0); and third, to cash collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i). Such mandatory prepayments of the Swingline Loans and Revolving Loans shall not cause a corresponding reduction in the Swingline Commitment or Revolving Commitments.

 

Amounts to be applied pursuant to this Section 2.10 to the prepayment of Revolving Loans shall be applied, as applicable, first to reduce outstanding ABR Revolving Loans. Any amounts remaining after each such application shall be applied to prepay Term SOFR Loans. Notwithstanding the foregoing, if the amount of any prepayment of Loans required under this Section 2.10 shall be in excess of the amount of the ABR Loans at the time outstanding (an “Excess Amount”), only the portion of the amount of such prepayment as is equal to the amount of such outstanding ABR Loans shall be immediately prepaid and, at the election of Borrowers, the Excess Amount shall be either (A) deposited in an escrow account on terms satisfactory to the Administrative Agent and applied to the prepayment of Term SOFR Loans on the last day of the then next-expiring Interest Period for Term SOFR Loans; provided that (i) interest in respect of such Excess Amount shall continue to accrue thereon at the rate provided hereunder for the Loans which such Excess Amount is intended to repay until such Excess Amount shall have been used in full to repay such Loans and (ii) at any time while a Default has occurred and is continuing, the Administrative Agent may, and upon written direction from the Required Lenders shall, apply any or all proceeds then on deposit to the payment of such Loans in an amount equal to such Excess Amount or (B) prepaid immediately, together with any amounts owing to the Lenders under Section 2.13.

 

(f)          Notice of Prepayment. Administrative Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by written notice of any prepayment hereunder (i) in the case of prepayment of a Term SOFR Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the Business Day of prepayment and (iii) in the case of prepayment of a Swingline Loan, not later than 2:00 p.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable; provided that a notice of prepayment delivered by Administrative Borrower may state that such notice is conditioned upon the effectiveness of another credit facility or the closing of a securities offering, in which case such notice may be revoked by Administrative Borrower (by notice to the Administrative Agent on or prior to the specified payment date) if such condition is not satisfied. Each such notice shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment. Promptly following receipt of any such notice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Credit Extension of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing and otherwise in accordance with this Section 2.10. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.06.

 

Section 2.11         Inability to Determine Rate; Successor Rates.

 

(a)         Inability to Determine Rate: If, in connection with any request for a Term SOFR Loan or a conversion to or continuation thereof, as applicable, (a) Agent determines (which determination shall be conclusive absent manifest error) that (i) no Successor Rate has been determined in accordance with Section 2.11(b), and the circumstances under Section 2.11(b)(i) or the Scheduled Unavailability Date has occurred (as applicable), or (ii) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan or in connection with an existing or proposed ABR Loan, or (b) Administrative Agent or Required Lenders determine that for any reason Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, Administrative Agent will promptly so notify Borrowers and Lenders.  Thereafter, (x) the obligation of Lenders to make, maintain, or convert ABR Loans to, Term SOFR Loans shall be suspended (to the extent of the affected Term SOFR Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of Alternate Base Rate, the utilization of such component in determining Alternate Base Rate shall be suspended, in each case until Administrative Agent (or, in the case of a determination by Required Lenders described above, until Administrative Agent upon instruction of Required Lenders) revokes such notice.  Upon receipt of such notice, (I) Borrowers may revoke any pending request for a Borrowing, conversion or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for ABR Loans, and (II) any outstanding Term SOFR Loans shall convert to ABR Loans at the end of their respective Interest Periods.

 

(b)        Successor Rates. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrowers) that the Borrowers or Required Lenders (as applicable) have determined, that:

 

(i)        adequate and reasonable means do not exist for ascertaining one, three and six month interest periods of Term SOFR, including because the Term SOFR Screen Rate is not available or published on a current basis, and such circumstances are unlikely to be temporary; or

 

(ii)      CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over Administrative Agent, CME or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided, that at the time of such statement, there is no successor administrator satisfactory to Administrative Agent that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, “Scheduled Unavailability Date”);

 

then, on a date and time determined by Administrative Agent (any such date, “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (b) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment, for any payment period for interest calculated that can be determined by Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, any Loan Document (“Successor Rate”).  If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment all interest will be payable on a monthly basis.

 

Notwithstanding anything to the contrary herein, (x) if Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date or (y) if the events or circumstances of the type described in clauses (i) or (ii) above have occurred with respect to the Successor Rate then in effect, then in each case, Administrative Agent and Administrative Borrower may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for such alternative benchmarks in similar U.S. dollar denominated syndicated credit facilities syndicated and agented in the United States and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for such benchmarks in similar U.S. dollar denominated credit facilities syndicated and agented in the United States, which adjustment or method for calculating such adjustment shall be published on an information service selected by Administrative Agent from time to time, in consultation with the Borrowers, and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a Successor Rate. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after Administrative Agent posts such proposed amendment to all Lenders and Borrowers unless, prior to such time, Required Lenders deliver to Administrative Agent written notice that Required Lenders object to the amendment.

 

Administrative Agent will promptly (in one or more notices) notify Borrowers and Lenders of implementation of any Successor Rate.  A Successor Rate shall be applied in a manner consistent with market practice; provided, that to the extent market practice is not administratively feasible for Administrative Agent, the Successor Rate shall be applied in a manner as otherwise reasonably determined by Administrative Agent in consultation with the Borrowers. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero, the Successor Rate will be deemed to be zero for all purposes of the Loan Documents.

 

Section 2.12         Yield Protection.

 

(a)          Increased Costs Generally. If any Change in Law shall:

 

(i)          impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in, by any Lender (except any reserve requirement reflected in the Term SOFR Screen Rate) or any Issuing Bank;

 

(ii)          subject any Lender or any Issuing Bank to any Tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Loan made by it (except for any Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, Indemnified Taxes or Connection Income Taxes); or

 

(iii)      impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense affecting this Agreement or Term SOFR Loans made by such Lender or any Letter of Credit or participation therein;

 

and the result of any of the foregoing shall be to increase the cost to such Lender of making, continuing, converting into or maintaining any Term SOFR Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender, such Issuing Bank or such Lender’s or such Issuing Bank’s holding company, if any, of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or any other amount), then, upon request of such Lender or such Issuing Bank, Borrowers will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.

 

(b)         Capital Requirements. If any Lender or any Issuing Bank determines (in good faith) that any Change in Law affecting such Lender or such Issuing Bank or any lending office of such Lender or such Lender’s or such Issuing Bank’s holding company, if any, regarding capital and liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy and liquidity), then from time to time Borrowers will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.

 

(c)         Certificates for Reimbursement. A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 2.12 and delivered to Borrowers shall be prima facie evidence of the facts determined therein absent manifest error. Borrowers shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within 15 days after receipt thereof.

 

(d)          Delay in Requests. Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section 2.12 shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that Borrowers shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or such Issuing Bank, as the case may be, notifies Borrowers of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof) .

 

Section 2.13        Breakage Payments.

 

In the event of (a) the payment or prepayment, whether optional or mandatory, of any principal of any Term SOFR Loan earlier than the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Term SOFR Loan earlier than the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Term SOFR Loan on the date specified in any notice delivered pursuant hereto or (d) the assignment of any Term SOFR Loan earlier than the last day of the Interest Period applicable thereto as a result of a request by Administrative Borrower pursuant to Section 2.16(b), then, in any such event, Borrowers shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Term SOFR Loan, such loss, cost or expense to any Lender shall be deemed to include an amount reasonably equal to the actual loss or expense arising from the liquidation or reemployment of funds obtained by such Lender to maintain such Loss. A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.13 shall be delivered to Borrowers (with a copy to the Administrative Agent) and shall be prima facie evidence of the facts determined therein absent manifest error. Borrowers shall pay such Lender the amount shown as due on any such certificate within 5 days after receipt thereof.

 

Section 2.14         Payments Generally; Pro Rata Treatment; Sharing of Setoffs.

 

(a)         Payments Generally. Borrowers shall make each payment required to be made by them hereunder or under any other Loan Document (whether of principal, interest, fees or Reimbursement Obligations, or of amounts payable under Section 2.12, 2.13, 2.15, 2.16, 10.03 or 10.19, or otherwise) on or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff, deduction or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices set forth in Section 10.01 hereto, except payments to be made directly to any Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.12, 2.13, 2.15, 2.16, 10.03 or 10.19 shall be made directly to the persons entitled thereto and payments pursuant to other Loan Documents shall be made to the persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly following receipt thereof. Notwithstanding anything else herein to the contrary, if any payment under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension unless such payment is made on such next succeeding Business Day. All payments under each Loan Document shall be made in dollars, except as expressly specified otherwise.

 

(b)          Pro Rata Treatment.

 

(i)         Each payment by Borrowers of interest in respect of the Loans shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.

 

(ii)         Each payment on account of principal of the Revolving Borrowings shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders, except as expressly provided in Section 2.20(d).

 

(c)        Insufficient Funds. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, Reimbursement Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal and Reimbursement Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and Reimbursement Obligations then due to such parties. It is understood that the foregoing does not apply to any adequate protection payments under any federal, state or foreign bankruptcy, insolvency, receivership or similar proceeding, and that the Administrative Agent may, subject to any applicable federal, state or foreign bankruptcy, insolvency, receivership or similar orders, distribute any adequate protection payments it receives on behalf of the Lenders to the Lenders in its sole discretion (i.e., whether to pay the earliest accrued interest, all accrued interest on a pro rata basis or otherwise).

 

(d)          Sharing of Set-Off. If any Lender (and/or any Issuing Bank, which shall be deemed a “Lender” for purposes of this Section 2.14(d)) shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other Obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:

 

(i)         if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

 

(ii)         the provisions of this paragraph shall not be construed to apply to (x) any payment made by Borrowers pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Holdings or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).

 

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation. If under applicable bankruptcy, insolvency or any similar law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.14(d) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this Section 2.14(d) to share in the benefits of the recovery of such secured claim.

 

(e)          Borrower Default. Unless the Administrative Agent shall have received notice from Administrative Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that Borrowers will not make such payment, the Administrative Agent may assume that Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. With respect to any payment that Administrative Agent makes for the account of Lenders or any Issuing Bank hereunder as to which Administrative Agent determines (which determination shall be conclusive absent manifest error)  that any of the following applies (such payment, a "Rescindable Amount"): (1) Borrowers have not in fact made such payment, (2) Administrative Agent has made a payment in excess of the amount so paid by Borrowers (whether or not then owed), or (3) Administrative Agent has for any reason otherwise erroneously made such payment, then each Lender or Issuing Bank, as applicable, severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount so distributed to or otherwise made for the account of such Lender or Issuing Bank, in immediately available funds 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 Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. A notice by Administrative Agent to Issuing Bank, and any Lender with respect to any amount owing under this clause (e) shall be conclusive, absent manifest error.

 

Section 2.15         Taxes.

 

(a)         Payments Free of Taxes. Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Taxes except as required by applicable Requirements of Law; provided that if the applicable withholding agent shall be required by applicable Requirements of Law (as determined in the good faith discretion of the applicable withholding agent) to deduct any Tax from such payments, then (i) if such Tax is an Indemnified Tax or Other Tax, the sum payable shall be increased by the Loan Parties as necessary so that after all required deductions have been made (including deductions applicable to additional sums payable under this Section) the Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the applicable withholding agent shall make all such deductions and (iii) the applicable withholding agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law.

 

(b)         Payment of Other Taxes by Borrowers. Without limiting the provisions of paragraph (a) above or (c) below, Borrowers shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law.

 

(c)         Indemnification by Borrowers. Without duplication of amounts paid by the Borrowers pursuant to Section 2.15(a), or (b), Borrowers shall indemnify the Administrative Agent and each Lender, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) payable by the Administrative Agent or such Lender, as the case may be, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that the Borrowers shall not be required to indemnify the Administrative Agent or any Lender for interest, additions to tax or penalties imposed as a result of the gross negligence or willful misconduct of such Person.  A certificate as to the amount of such payment or liability delivered to Borrowers by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, setting forth in reasonable detail the basis for the calculations of such payment or liability and including reasonable supporting evidence shall be prima facie evidence thereof absent manifest error.

 

(d)        Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by Borrowers to a Governmental Authority, Administrative Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(e)         Status of Lenders. On or prior to the date on which such Foreign Lender becomes a Lender under this Agreement, including by assignment, any Foreign Lender that is entitled to an exemption from or reduction of any withholding Tax with respect to any payments hereunder or under any other Loan Document shall, to the extent it may lawfully do so, deliver to Administrative Borrower and to the Administrative Agent, at the time or times reasonably requested by Administrative Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Requirements of Law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law or reasonably requested by Administrative Borrower or the Administrative Agent as will enable Administrative Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the above two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (i) through (v) of this Section) shall not be required if in the Lender’s judgment such completion, execution or submission would subject such Lender to any unreimbursed cost or expense or would be disadvantageous to such Lender in any material respect.

 

Without limiting the generality of the foregoing, in the event that any Borrower is resident for Tax purposes in the United States of America, any Foreign Lender shall, to the extent it may lawfully do so, deliver to Administrative Borrower and the Administrative 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 including by assignment (and from time to time thereafter upon the request of Administrative Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

 

(i)          duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms) claiming eligibility for benefits of an income Tax treaty to which the United States of America is a party,

 

(ii)          duly completed copies of Internal Revenue Service Form W-8ECI (or any successor forms),

 

(iii)        in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate, in substantially the form of Exhibit Q, or any other form approved by the Administrative Agent, to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and that no payments in connection with the Loan Documents are effectively connected with such Foreign Lender’s conduct of a U.S. trade or business and (y) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms),

 

(iv)        to the extent a Foreign Lender is not the beneficial owner (for example, where the Foreign Lender is a partnership or participating Lender granting a typical participation), duly completed copies of Internal Revenue Service Form W-8IMY (or any successor forms), accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E, a certificate in substantially the form of Exhibit Q, Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that, if the Foreign Lender is a partnership (and not a participating Lender) and one or more beneficial owners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a certificate, in substantially the form of Exhibit Q, on behalf of such beneficial owner(s),

 

(v)        if a payment made to a Lender hereunder or pursuant to any Notes would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender fails to comply with the applicable reporting requirements of FATCA (including those contained in section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Administrative Agent and Administrative Borrower (A) a certification signed by the chief financial officer, principal accounting officer, treasurer or controller and (B) other documentation reasonably requested by the Administrative Agent and Administrative Borrower sufficient for Administrative Agent and Administrative Borrower to comply with their obligations under FATCA and to determine that such Lender has complied with such applicable reporting requirements, or

 

(vi)        any other form prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax duly completed together with such supplementary documentation as may be prescribed by applicable Requirements of Law to permit Borrowers and the Administrative Agent to determine the withholding or deduction required to be made.

 

Each Foreign Lender shall, from time to time after the initial delivery by such Foreign Lender of the forms described above, whenever a lapse in time or change in such Foreign Lender’s circumstances renders such forms, certificates or other evidence so delivered obsolete or inaccurate, promptly (1) deliver to the Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) renewals, amendments or additional or successor forms, properly completed and duly executed by such Foreign Lender, together with any other certificate or statement of exemption required in order to confirm or establish such Foreign Lender’s status or that such Foreign Lender is entitled to an exemption from or reduction in U.S. federal withholding Tax or (2) notify Administrative Agent and Borrowers of its inability to deliver any such forms, certificates or other evidence.

 

Any Lender that is not a Foreign Lender shall deliver to Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable law or upon the request of Administrative Borrower or the Administrative Agent), duly executed and properly completed copies of Internal Revenue Service Form W-9 certifying that it is not subject to backup withholding.

 

(f)          Treatment of Certain Refunds. If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this Section, it shall pay to the applicable Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender or in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to Borrowers or any other person. Notwithstanding anything to the contrary, in no event will the Administrative Agent or any Lender be required to pay any amount to a Loan Party the payment of which would place the Administrative Agent or such Lender in a less favorable net after-tax position than the Administrative Agent or such Lender would have been in if the Indemnified Taxes or Other Taxes giving rise to such refund had never been imposed in the first instance.

 

(g)        Payments. For purposes of this Section 2.15, (i) any payments by the Administrative Agent to a Lender of any amounts received by the Administrative Agent from Borrowers on behalf of such Lender shall be treated as a payment from Borrowers to such Lender and (ii) if a Lender is treated as a partnership by a jurisdiction imposing an Indemnified Tax, any withholding or payment of such Indemnified Tax by the Lender in respect of any of such Lender’s partners shall be considered a withholding or payment of such Indemnified Tax by the Borrowers.

 

(h)          Issuing Bank. For all purposes of this Section 2.15, the term Lender shall include the Issuing Banks.

 

(i)          No Longer “Grandfathered Obligations”. The Borrowers intend to treat the Revolving Commitments (including advances already outstanding) as not being “grandfathered obligations” for purposes of FATCA.

 

Section 2.16         Mitigation Obligations; Replacement of Lenders.

 

(a)          Designation of a Different Lending Office. If any Lender requests compensation under Section 2.12, or requires Borrowers to indemnify or pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.15, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment. A certificate setting forth such costs and expenses submitted by such Lender to Administrative Borrower, setting forth in reasonable detail the basis for the calculations of such costs and expenses and including reasonable supporting evidence, shall be prima facie evidence thereof absent manifest error.

 

(b)        Replacement of Lenders. If any Lender requests compensation under Section 2.12, or if Borrowers are required to indemnify or pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, or if any Lender is a Defaulting Lender, or if Borrowers exercise their replacement rights under Section 10.02(d), then Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.04), all of its interests, rights and obligations under this Agreement and the other Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

 

(i)          Borrowers shall have paid (or shall have caused to be paid) to the Administrative Agent the processing and recordation fee specified in Section 10.04(b);

 

(ii)       such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.13) (other than indemnities and other Contingent Obligations not then due and payable), assuming for this purpose (in the case of a Lender being replaced pursuant to Section 2.12, 2.15 or 10.02(d)) that the Loans of such Lender were being prepaid) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrowers (in the case of all other amounts)

 

(iii)       in the case of any such assignment resulting from a claim for compensation under Section 2.12 or payments required to be made pursuant to Section 2.15, such assignment will result in a reduction in such compensation or payments thereafter; and

 

(iv)         such assignment does not conflict with applicable Requirements of Law.

 

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrowers to require such assignment and delegation cease to apply.

 

Each Lender agrees that, if Borrowers elect to replace such Lender in accordance with this Section 2.16(b), they shall promptly execute and deliver to the Administrative Agent an Assignment and Assumption to evidence the assignment and shall deliver to the Administrative Agent any Note (if Notes have been issued in respect of such Lender’s Loans) subject to such Assignment and Assumption; provided that the failure of any such Lender to execute an Assignment and Assumption shall not render such assignment invalid and such assignment shall be recorded in the Register.

 

Section 2.17         Swingline Loans.

 

(a)          Swingline Commitment. Subject to the terms and conditions set forth herein, the Swingline Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.17 and in its discretion, to make Swingline Loans to Borrowers from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Commitment or (ii) the sum of the total Revolving Exposures exceeding the Line Cap; provided that the Borrowers shall not use the proceeds of any Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, Borrowers may borrow, repay and reborrow Swingline Loans.

 

(b)         Swingline Loans. To request a Swingline Loan, Administrative Borrower shall deliver, by hand delivery, telecopier or email attachment, a duly completed and executed Borrowing Request to the Administrative Agent and the Swingline Lender, not later than 1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and the amount of the requested Swingline Loan. Each Swingline Loan shall be an ABR Loan. The Swingline Lender shall make each Swingline Loan available to Borrowers to an account as directed by Administrative Borrower in the applicable Borrowing Request maintained with the Administrative Agent (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.18(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. Administrative Borrower shall not request a Swingline Loan if at the time of or immediately after giving effect to the Extension of Credit contemplated by such request a Default has occurred and is continuing or would result therefrom. Swingline Loans shall be made in minimum amounts of $1,000,000 and integral multiples of $100,000 above such amount.

 

(c)          Prepayment. Borrowers shall have the right at any time and from time to time to repay any Swingline Loan, in whole or in part, upon giving written notice to the Swingline Lender and the Administrative Agent before 2:00 p.m., New York City time, on the proposed date of prepayment.

 

(d)          Participations. The Swingline Lender may at any time in its discretion, and shall, at least once each week, by written notice given to the Administrative Agent (provided such notice requirement shall not apply if the Swingline Lender and the Administrative Agent are the same entity) not later than 11:00 a.m., New York City time, on the next succeeding Business Day following such notice require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans then outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Pro Rata Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Pro Rata Percentage of such Swingline Loan or Loans. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve Borrowers of any default in the payment thereof. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever (so long as such payment shall not cause such Lender’s Revolving Exposure to exceed such Lender’s Revolving Commitment). Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.02(c) with respect to Loans made by such Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify Administrative Borrower of any participations in any Swingline Loan acquired by the Revolving Lenders pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from Borrowers (or other party on behalf of Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent. Any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph, as their interests may appear.

 

Section 2.18         Letters of Credit.

 

(a)          General. Subject to the terms and conditions set forth herein, Administrative Borrower may request each Issuing Bank, and each Issuing Bank agrees, to issue Letters of Credit for a Borrower’s own account or the account of a Subsidiary in a form reasonably acceptable to the Administrative Agent and such Issuing Bank, at any time and from time to time during the Revolving Availability Period (provided that the applicable Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each Letter of Credit issued for the account of a Subsidiary). Each Issuing Bank shall have no obligation to issue, and Administrative Borrower shall not request the issuance of, any Letter of Credit at any time if after giving effect to such issuance, the LC Exposure would exceed the LC Commitment or the total Revolving Exposure would exceed the Line Cap. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by Administrative Borrower to, or entered into by Borrowers with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. To the extent that an Issuing Bank has LC Exposure on the Effective Date that is higher than its individual LC Commitment separately agreed to with the Borrowers and the Administrative Agent then such Issuing Bank’s individual LC Commitment shall be reduced over time to at or below their agreed-upon level as existing Letters of Credit expire over time.

 

(b)          Request for Issuance, Amendment, Renewal, Extension; Certain Conditions and Notices. To request the issuance of a Letter of Credit or the amendment, renewal or extension of an outstanding Letter of Credit, Administrative Borrower shall deliver, by hand or telecopier (or transmit by electronic communication, if arrangements for doing so have been approved by the relevant Issuing Bank), an LC Request to the relevant Issuing Bank and the Administrative Agent not later than 11:00 a.m. on the second Business Day preceding the requested date of issuance, amendment, renewal or extension (or such shorter preceding date and time as is acceptable to the relevant Issuing Bank).

 

A request for an initial issuance of a Letter of Credit shall be provided and delivered by the Administrative Borrower and shall specify in form and detail reasonably satisfactory to the relevant Issuing Bank:

 

(i)           the proposed issuance date of the requested Letter of Credit (which shall be a Business Day);

 

(ii)         the amount thereof;

 

(iii)        the expiry date thereof (which shall not be later than the close of business on the Letter of Credit Expiration Date or such later date acceptable to the Administrative Agent and the relevant Issuing Bank);

 

(iv)         the name and address of the beneficiary thereof;

 

(v)        whether the Letter of Credit is to be issued for its own account or for the account of one of its Subsidiaries (provided that such Borrower shall be a co-applicant, and therefore jointly and severally liable, with respect to each Letter of Credit issued for the account of a Subsidiary);

 

(vi)         the documents to be presented by such beneficiary in connection with any drawing thereunder;

 

(vii)        the full text of any certificate to be presented by such beneficiary in connection with any drawing thereunder; and

 

(viii)       such other matters as the relevant Issuing Bank may reasonably require.

 

A request for an amendment, renewal or extension of any outstanding Letter of Credit shall specify in form and detail reasonably satisfactory to the relevant Issuing Bank:

 

(i)           the Letter of Credit to be amended, renewed or extended;

 

(ii)          the proposed date of amendment, renewal or extension thereof (which shall be a Business Day);

 

(iii)         the nature of the proposed amendment, renewal or extension; and

 

(iv)         such other matters as the relevant Issuing Bank may reasonably require.

 

If requested by an Issuing Bank, Administrative Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and, upon issuance, amendment, renewal or extension of each Letter of Credit, Administrative Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i) the LC Exposure shall not exceed the LC Commitment, (ii) the total Revolving Exposures shall not exceed the Line Cap and (iii) the conditions set forth in Article IV in respect of such issuance, amendment, renewal or extension shall have been satisfied. Unless the relevant Issuing Bank and the Administrative Agent shall agree otherwise, no Letter of Credit shall be in an initial amount less than $100,000, in the case of a Commercial Letter of Credit, or $100,000, in the case of a Standby Letter of Credit.

 

Upon the issuance of any Letter of Credit or amendment, renewal, extension or modification to a Letter of Credit, the relevant Issuing Bank shall promptly notify the Administrative Agent, who shall promptly notify each Revolving Lender, thereof, which notice shall be accompanied by a copy of such Letter of Credit or amendment, renewal, extension or modification to a Letter of Credit and the amount of such Lender’s respective participation in such Letter of Credit pursuant to Section 2.18(d). If the Issuing Bank is not the same person as the Administrative Agent, on the first Business Day of each calendar month, each Issuing Bank shall provide to the Administrative Agent and the Administrative Borrower a report listing all outstanding Letters of Credit and the amounts and beneficiaries thereof and the Administrative Agent shall promptly provide such report to each Revolving Lender.

 

(c)          Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) (w) the date which is one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension), (x) the Letter of Credit Expiration Date (or such later date acceptable to the Administrative Agent and the relevant Issuing Bank) and (y) the expiration date set forth on the face of such Letter of Credit, and (ii) if Administrative Borrower so requests in any Letter of Credit Request, the relevant Issuing Bank may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit must permit such Issuing Bank to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued and set forth in such Letter of Credit. Unless otherwise directed by the relevant Issuing Bank, Borrowers shall not be required to make a specific request to such Issuing Bank for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the relevant Issuing Bank to permit the renewal of such Letter of Credit at any time prior to an expiry date but not later than the earlier of (i) one year from the date of such renewal and (ii) the Letter of Credit Expiration Date (or such later date acceptable to the Administrative Agent and such Issuing Bank); provided that such Issuing Bank shall not permit any such renewal if (x) such Issuing Bank has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of Section 2.18(k) or otherwise), or (y) it has received notice on or before the day that is two Business Days before the date which has been agreed upon pursuant to the proviso of the first sentence of this paragraph, (1) from the Administrative Agent that any Revolving Lender directly affected thereby has elected not to permit such renewal or (2) from the Administrative Agent, any Lender or Borrowers that one or more of the applicable conditions specified in Section 4.02 are not then satisfied.

 

(d)         Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Banks or the Lenders, each Issuing Bank hereby irrevocably grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s Pro Rata Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Banks, such Revolving Lender’s Pro Rata Percentage of each LC Disbursement made by the Issuing Banks and not reimbursed by Borrowers on the date due as provided in Section 2.18(e), or of any reimbursement payment required to be refunded to Borrowers for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, or expiration, termination or cash collateralization of any Letter of Credit and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

 

(e)          Reimbursement.

 

(i)       If any Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, Borrowers shall reimburse such LC Disbursement by paying to such Issuing Bank an amount equal to such LC Disbursement not later than 3:00 p.m., New York City time, on the date that such LC Disbursement is made if Administrative Borrower shall have received notice of such LC Disbursement prior to 11:00 a.m., New York City time, on such date, or, if such notice has not been received by Administrative Borrower prior to such time on such date, then not later than 3:00 p.m., New York City time, on the Business Day immediately following the day that Administrative Borrower receives such notice; provided that Administrative Borrower may request in accordance with Section 2.03 that such payment be financed with ABR Revolving Loans or Swingline Loans (which ABR Revolving Loans or Swingline Loans, as the case may be, will not be subject to the conditions to borrowing set forth herein) in an equivalent amount and, to the extent so financed, Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Loans or Swingline Loans.

 

(ii)        If Borrowers elects not to make such payment when due for any reason, then the Borrowers will be deemed to have requested a Revolving Loan to the Revolving Lenders, and which request will be automatic and not be subject to the conditions precedent set forth in Article IV. Upon delivery of written notice of such election by the Administrative Borrower to the relevant Issuing Bank, such Issuing Bank shall notify the Administrative Agent and the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from Borrowers in respect thereof (including, without limitation, any amounts under Section 2.18(e)(iii) or 2.18(h)) and such Revolving Lender’s Pro Rata Percentage thereof. Each Revolving Lender shall then fund its Pro Rata Percentage of such Revolving Loans and shall pay by wire transfer of immediately available funds to the Administrative Agent not later than 2:00 p.m., New York City time, on such date (or, if such Revolving Lender shall have received such notice later than 12:00 noon, New York City time, on any day, not later than 11:00 a.m., New York City time, on the immediately following Business Day), an amount equal to such Revolving Lender’s Pro Rata Percentage of the unreimbursed LC Disbursement in the same manner as provided in Section 2.02(c) with respect to Revolving Loans made by such Revolving Lender, and the Administrative Agent will promptly pay to the relevant Issuing Bank the amounts so received by it from the Revolving Lenders. If for whatever reason it is not possible for a Revolving Loan to be made as provided herein, the Administrative Agent shall notify the relevant Issuing Bank and each Revolving Lender of such event and such Issuing Bank shall then within one (1) Business Day notify the Administrative Agent and each Revolving Lender of the applicable LC Disbursement, the payment then due from Borrowers in respect thereof and such Revolving Lender’s Pro Rata Percentage thereof. Each Revolving Lender shall pay by wire transfer of immediately available funds to the Administrative Agent not later than 2:00 p.m., New York City time, on the date it is notified by the relevant Issuing Bank (or, if such Revolving Lender shall have received such notice later than 12:00 noon, New York City time, on any day, not later than 11:00 a.m., New York City time, on the immediately following Business Day), an amount equal to such Revolving Lender’s Pro Rata Percentage of the unreimbursed LC Disbursement in the same manner as provided in Section 2.02(c) with respect to Revolving Loans made by such Revolving Lender, and the Administrative Agent will promptly pay to such Issuing Bank the amounts so received by it from the Revolving Lenders. To the extent of any payments made by a Revolving Lender pursuant to this Section 2.18(e)(ii), no Default or Event of Default will result from the failure of the Borrowers to make reimbursement in respect of the relevant LC Disbursement, which reimbursement obligations will be satisfied by the funding of the relevant Revolving Loans. The Administrative Agent will promptly pay to the relevant Issuing Bank any amounts received by it from Borrowers pursuant to the above paragraph prior to the time that any Revolving Lender makes any payment pursuant to the preceding sentence and any such amounts received by the Administrative Agent from Borrowers thereafter will be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made such payments and to such Issuing Bank, as appropriate.

 

(iii)        If any Revolving Lender shall not have made its Pro Rata Percentage of such LC Disbursement available to the Administrative Agent as provided above, each of such Revolving Lender and Borrowers severally agrees to pay interest on such amount, for each day from and including the date such amount is required to be paid in accordance with the foregoing to but excluding the date such amount is paid, to the Administrative Agent for the account of the Issuing Banks at (i) in the case of Borrowers, the rate per annum set forth in Section 2.18(g) and (ii) in the case of such Lender, at a rate determined by the Administrative Agent in accordance with banking industry rules or practices on interbank compensation.

 

(f)        Obligations Absolute. The Reimbursement Obligation of Borrowers as provided in Section 2.18(e) shall be absolute, unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein; (ii) any draft or other document presented under a Letter of Credit being proved to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iii) payment by any Issuing Bank under a Letter of Credit against presentation of a draft or other document that fails to comply with the terms of such Letter of Credit; (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing (other than payment), that might, but for the provisions of this Section 2.18, constitute a legal or equitable discharge of, or provide a right of setoff against, the obligations of Borrowers hereunder; (v) the fact that a Default shall have occurred and be continuing; or (vi) any material adverse change in the business, property, results of operations, prospects or condition, financial or otherwise, of Borrowers and their Subsidiaries. None of the Agents, the Lenders, the Issuing Banks or any of their Affiliates shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of any Issuing Bank; provided that the foregoing shall not be construed to excuse such Issuing Bank from liability to Borrowers to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by Borrowers to the extent permitted by applicable Requirements of Law) suffered by Borrowers that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof or actions that are the result of relevant Issuing Bank’s gross negligence, bad faith or willful misconduct. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of any Issuing Bank (as finally determined by a court of competent jurisdiction), each Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, each Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

 

(g)       Disbursement Procedures. The relevant Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The relevant Issuing Bank shall promptly give written notice to the Administrative Agent and Administrative Borrower of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve Borrowers of their Reimbursement Obligation to such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement (other than with respect to the timing of such Reimbursement Obligation set forth in Section 2.18(e)).

 

(h)          Interim Interest. If any Issuing Bank shall make any LC Disbursement, then, unless Borrowers shall reimburse such LC Disbursement or such LC Disbursement is repaid with Revolving Loans as set forth in clause (c) above in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest payable on demand, for each day from and including the date such LC Disbursement is made to and including the date that Borrowers are required to reimburse such LC Disbursement under Section 2.18(e)(i), at the interest rate then in effect for ABR Loans, and thereafter, at the rate per annum determined pursuant to Section 2.06(c) until (but excluding) the date that Borrowers reimburse such LC Disbursement or such LC Disbursement is repaid with Revolving Loans as set forth in clause (e) above. Interest accrued pursuant to this paragraph shall be for the account of any Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to Section 2.18(e) to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment.

 

(i)          Cash Collateralization. If any Event of Default shall occur and be continuing, on the Business Day that Administrative Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, Borrowers shall deposit on terms and in accounts reasonably satisfactory to the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders, an amount in cash equal to 103% of the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to Borrowers described in Section 8.01(g) or (h). Funds so deposited shall be applied by the Administrative Agent to reimburse the Issuing Banks for LC Disbursements for which they have not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of outstanding Reimbursement Obligations or, if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy other Obligations of Borrowers under this Agreement. If Borrowers are required to provide an amount of cash collateral under this Section 2.18(i) as a result of the occurrence of an Event of Default, such amount plus any accrued interest or realized profits with respect to such amounts (to the extent not applied as aforesaid) shall be returned to Borrowers within three Business Days after all Events of Default have been cured or waived.

 

(j)          Additional Issuing Banks. Borrowers may, at any time and from time to time, designate one or more additional Revolving Lenders to act as an Issuing Bank under the terms of this Agreement, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld) and such Revolving Lender(s). Any Revolving Lender designated as an Issuing Bank pursuant to this paragraph (j) shall have all the rights and obligations of the Issuing Banks under the Loan Documents with respect to Letters of Credit issued or to be issued by it, and all references in the Loan Documents to the term “Issuing Bank” shall, with respect to such Letters of Credit, be deemed to refer to such Revolving Lender in its capacity as an Issuing Bank, as the context shall require. The Administrative Agent shall notify the Lenders of any such additional Issuing Banks. If at any time there is more than one Issuing Bank hereunder, Borrowers may, in their discretion, select which Issuing Bank is to issue any particular Letter of Credit.

 

(k)          Resignation or Removal of an Issuing Bank. Any Issuing Bank may resign as Issuing Bank hereunder at any time upon at least 30 days’ prior notice to the Lenders, the Administrative Agent and Administrative Borrower. Any Issuing Bank may be replaced at any time by written agreement among the Administrative Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank pursuant to Section 2.18(j) above. The Administrative Agent shall notify the Lenders of any such replacement of any such Issuing Bank. At the time any such resignation of such Issuing Bank shall become effective, Borrowers shall pay all unpaid fees accrued for the account of the retiring Issuing Bank pursuant to Section 2.05(c). From and after the effective date of any such resignation or replacement, (i) the successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued by it thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the resignation or replacement of an Issuing Bank, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such resignation or replacement, but shall not be required to issue additional Letters of Credit.

 

(l)           Other. (i) No Issuing Bank shall be under any obligation to issue any Letter of Credit if

 

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

 

(2)           the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank.

 

No Issuing Bank shall be under any obligation to amend any Letter of Credit if (A) such Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. For the avoidance of doubt, any Letter of Credit issued and outstanding under the Existing Revolving Credit Agreement as of the Effective Date immediately prior to giving effect to this Agreement shall automatically be deemed issued as a Letter of Credit under this Agreement from and after the Effective Date.

 

(ii)          Each Issuing Bank hereby agrees that, if it shall at any time have possession of any original paper bills of lading covering hydrocarbon Inventory of the Borrowers or any other Collateral, such original paper bills of lading and other Collateral shall be held by such Issuing Bank as a designee and bailee of the Administrative Agent, on behalf of the Secured Parties, as security for the Secured Obligations.

 

Section 2.19         Defaulting Lenders.

 

Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

 

(a)          the Commitment Fee shall cease to accrue on the Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to the Issuing Banks pursuant to clause (c)(v) below);

 

(b)          if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:

 

(i)          all or any part of such Swingline Exposure and LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;

 

(ii)         if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure and (y) second, cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.18(i) for so long as such LC Exposure is outstanding;

 

(iii)        if any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (ii) above, Borrowers shall not be required to pay the LC Participation Fee with respect to such portion of such Defaulting Lender’s LC Exposure so long as it is cash collateralized;

 

(iv)       if any portion of such Defaulting Lender’s LC Exposure is reallocated to the non-Defaulting Lenders pursuant to clause (i) above, then the LC Participation Fee with respect to such portion shall be allocated among the non-Defaulting Lenders in accordance with their Pro Rata Percentages; or

 

(v)         if any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.19(b), then, without prejudice to any rights or remedies of any Issuing Bank or any Lender hereunder, the Commitment Fee that otherwise would have been payable to such Defaulting Lender (with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and the LC Participation Fee payable with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant Issuing Bank until such LC Exposure is cash collateralized and/or reallocated;

 

(c)          so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateralized in accordance with Section 2.19(b), and participations in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in accordance with their respective Pro Rata Percentages (and Defaulting Lenders shall not participate therein); and

 

(d)        any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.14(d) but excluding Section 2.16(b)) may, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable Requirements of Law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Banks or Swingline Lender hereunder, (iii) third, to the funding of any Loan or the funding or cash collateralization of any participation in any Swingline Loan or Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (iv) fourth, if so determined by the Administrative Agent and Administrative Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to Borrowers or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by Borrowers or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or Reimbursement Obligations in respect of LC Disbursements which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and Reimbursement Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or Reimbursement Obligations owed to, any Defaulting Lender.

 

In the event that the Administrative Agent, Administrative Borrower, each Issuing Bank or the Swingline Lender, as the case may be, each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Percentage. The rights and remedies against a Defaulting Lender under this Section 2.19 are in addition to other rights and remedies that Borrowers, the Administrative Agent, the Issuing Banks, the Swingline Lender and the non-Defaulting Lenders may have against such Defaulting Lender. Unless expressly agreed by Borrowers, the Administrative Agent and the Issuing Banks, or as expressly provided herein with respect to Bail-In Actions and related matters, no reallocation of Commitments and Loans to non-Defaulting Lenders or reinstatement of a Defaulting Lender shall constitute a waiver or release of claims against such Lender. The arrangements permitted or required by this Section 2.19 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.

 

Index Debt Rating from Moody’s Investors Service Inc.	Index Debt Rating from Standard &Poor’s Ratings Group	ABR Loans	Term SOFR Loans	Letter of Credit Fee
≤ B2	≤ B+	1.00%	2.00%	2.00%
Ba3	BB-	0.75%	1.75%	1.75%
Ba2	BB	0.50%	1.50%	1.50%
≥ Ba1	≥ BB+	0.25%	1.25%	1.25%