exhibit101mrlcreditagree






Exhibit 10.1        CREDIT AGREEMENT  by and among  WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Agent,  THE LENDERS THAT ARE PARTIES HERETO  as the Lenders,  MONTANA RENEWABLES HOLDINGS LLC,  as Parent,  MONTANA RENEWABLES, LLC,  AND THOSE ADDITIONAL ENTITIES THAT HEREAFTER   BECOME PARTIES HERETO AS  BORROWERS,    as Borrowers  Dated as of November 2, 2022    





 






   -i-      TABLE OF CONTENTS  Page  1. DEFINITIONS AND CONSTRUCTION. ...................................................................... 1  1.1 Definitions .................................................................................................................... 1  1.2 Accounting Terms ...................................................................................................... 48  1.3 Code ........................................................................................................................... 49  1.4 Construction ............................................................................................................... 49  1.5 Time References ......................................................................................................... 49  1.6 Schedules and Exhibits ............................................................................................... 50  1.7 Divisions ..................................................................................................................... 50  1.8 Rates ........................................................................................................................... 50  1.9 Pro Forma Calculations; Fixed Charge Coverage Ratio Calculation ......................... 50  2. LOANS AND TERMS OF PAYMENT. ....................................................................... 51  2.1 Revolving Loans......................................................................................................... 51  2.2 [Reserved] .................................................................................................................. 52  2.3 Borrowing Procedures and Settlements...................................................................... 52  2.4 Payments; Reductions of Commitments; Prepayments. ............................................. 59  2.5 Promise to Pay; Promissory Notes. ............................................................................ 63  2.6 Interest Rates and Letter of Credit Fee:  Rates, Payments, and Calculations. ............ 63  2.7 Crediting Payments .................................................................................................... 65  2.8 Designated Account ................................................................................................... 65  2.9 Maintenance of Loan Account; Statements of Obligations ........................................ 65  2.10 Fees. ............................................................................................................................ 66  2.11 Letters of Credit.......................................................................................................... 66  2.12 Special Provisions Applicable to SOFR. .................................................................... 75  2.13 Capital Requirements. ................................................................................................ 76  2.14 Incremental Facilities. ................................................................................................ 77  2.15 Joint and Several Liability of Borrowers. ................................................................... 79  3. CONDITIONS; TERM OF AGREEMENT. ................................................................ 82  3.1 Conditions Precedent to the Initial Extension of Credit ............................................. 82  3.2 Conditions Precedent to all Extensions of Credit ....................................................... 82  3.3 Maturity ...................................................................................................................... 82  3.4 Effect of Maturity ....................................................................................................... 83  





 






TABLE OF CONTENTS  (continued)  Page     -ii-      3.5 Early Termination by Borrowers ................................................................................ 83  4. REPRESENTATIONS AND WARRANTIES. ............................................................ 83  4.1 Due Organization and Qualification; Subsidiaries. .................................................... 83  4.2 Due Authorization; No Conflict. ................................................................................ 84  4.3 Governmental Consents ............................................................................................. 84  4.4 Binding Obligations; Perfected Liens. ....................................................................... 85  4.5 Title to Assets; No Encumbrances ............................................................................. 85  4.6 Litigation .................................................................................................................... 85  4.7 Compliance with Laws ............................................................................................... 85  4.8 No Material Adverse Effect ....................................................................................... 86  4.9 Solvency. .................................................................................................................... 86  4.10 Employee Benefits ..................................................................................................... 86  4.11 Environmental Condition ........................................................................................... 86  4.12 Complete Disclosure .................................................................................................. 86  4.13 Patriot Act .................................................................................................................. 87  4.14 Indebtedness ............................................................................................................... 87  4.15 Payment of Taxes ....................................................................................................... 87  4.16 Margin Stock .............................................................................................................. 87  4.17 Governmental Regulation ........................................................................................... 88  4.18 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws ............... 88  4.19 Employee and Labor Matters ...................................................................................... 88  4.20 Parent as Holding Company ....................................................................................... 88  4.21 Leases ......................................................................................................................... 89  4.22 Eligible Accounts ....................................................................................................... 89  4.23 [Reserved] .................................................................................................................. 89  4.24 [Reserved] .................................................................................................................. 89  4.25 [Reserved] .................................................................................................................. 89  4.26 [Reserved] .................................................................................................................. 89  4.27 [Reserved] .................................................................................................................. 89  4.28 [Reserved] .................................................................................................................. 89  





 






TABLE OF CONTENTS  (continued)  Page     -iii-      4.29 Hedge Agreements ..................................................................................................... 89  5. AFFIRMATIVE COVENANTS. ................................................................................... 89  5.1 Financial Statements, Reports, Certificates ................................................................ 89  5.2 Reporting .................................................................................................................... 90  5.3 Existence .................................................................................................................... 90  5.4 Maintenance of Properties .......................................................................................... 90  5.5 Taxes .......................................................................................................................... 90  5.6 Insurance. ................................................................................................................... 90  5.7 Inspection. .................................................................................................................. 91  5.8 Compliance with Laws ............................................................................................... 92  5.9 Environmental ............................................................................................................ 92  5.10 Disclosure Updates ..................................................................................................... 92  5.11 Formation of Subsidiaries .......................................................................................... 92  5.12 Further Assurances ..................................................................................................... 93  5.13 [Reserved] .................................................................................................................. 93  5.14 Chief Executive Office ............................................................................................... 93  5.15 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws ............... 93  5.16 Blenders Tax Credits. ................................................................................................. 94  6. NEGATIVE COVENANTS. .......................................................................................... 94  6.1 Indebtedness ............................................................................................................... 94  6.2 Liens ........................................................................................................................... 94  6.3 Restrictions on Fundamental Changes ....................................................................... 94  6.4 Disposal of Assets ...................................................................................................... 95  6.5 Nature of Business...................................................................................................... 95  6.6 Prepayments and Amendments .................................................................................. 95  6.7 Restricted Payments ................................................................................................... 96  6.8 Accounting Methods .................................................................................................. 96  6.9 Investments ................................................................................................................. 96  6.10 Transactions with Affiliates ....................................................................................... 97  6.11 Use of Proceeds .......................................................................................................... 97  





 






TABLE OF CONTENTS  (continued)  Page     -iv-      6.12 Parent as Holding Company ....................................................................................... 98  7. FINANCIAL COVENANT. ........................................................................................... 98  8. EVENTS OF DEFAULT. ............................................................................................... 98  8.1 Payments .................................................................................................................... 98  8.2 Covenants ................................................................................................................... 98  8.3 Judgments ................................................................................................................... 99  8.4 Voluntary Bankruptcy, etc. ........................................................................................ 99  8.5 Involuntary Bankruptcy, etc. ...................................................................................... 99  8.6 Default Under Other Agreements ............................................................................... 99  8.7 Representations, etc. ................................................................................................. 100  8.8 Guaranty ................................................................................................................... 100  8.9 Security Documents ................................................................................................. 100  8.10 Loan Documents....................................................................................................... 100  8.11 Change of Control .................................................................................................... 100  9. RIGHTS AND REMEDIES. ........................................................................................ 100  9.1 Rights and Remedies ................................................................................................ 100  9.2 Remedies Cumulative ............................................................................................... 101  10. WAIVERS; INDEMNIFICATION. ............................................................................ 101  10.1 Demand; Protest; etc. ............................................................................................... 101  10.2 The Lender Group’s Liability for Collateral ............................................................ 101  10.3 Indemnification ........................................................................................................ 101  11. NOTICES. ..................................................................................................................... 103  12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL  REFERENCE PROVISION. ....................................................................................... 104  13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS. ................................. 105  13.1 Assignments and Participations. ............................................................................... 105  13.2 Successors ................................................................................................................ 109  14. AMENDMENTS; WAIVERS. ..................................................................................... 109  14.1 Amendments and Waivers. ....................................................................................... 109  14.2 Replacement of Certain Lenders. ............................................................................. 111  





 






TABLE OF CONTENTS  (continued)  Page     -v-      14.3 No Waivers; Cumulative Remedies ......................................................................... 112  15. AGENT; THE LENDER GROUP. ............................................................................. 112  15.1 Appointment and Authorization of Agent ................................................................ 112  15.2 Delegation of Duties ................................................................................................. 113  15.3 Liability of Agent ..................................................................................................... 113  15.4 Reliance by Agent .................................................................................................... 113  15.5 Notice of Default or Event of Default ...................................................................... 113  15.6 Credit Decision ......................................................................................................... 114  15.7 Costs and Expenses; Indemnification ....................................................................... 114  15.8 Agent in Individual Capacity ................................................................................... 115  15.9 Successor Agent ....................................................................................................... 115  15.10 Lender in Individual Capacity .................................................................................. 116  15.11 Collateral Matters. .................................................................................................... 116  15.12 Restrictions on Actions by Lenders; Sharing of Payments. ..................................... 118  15.13 Agency for Perfection .............................................................................................. 119  15.14 Payments by Agent to the Lenders ........................................................................... 119  15.15 Concerning the Collateral and Related Loan Documents ........................................ 119  15.16 Field Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports  and Information ........................................................................................................ 119  15.17 Several Obligations; No Liability ............................................................................. 120  16. WITHHOLDING TAXES............................................................................................ 120  16.1 Payments .................................................................................................................. 120  16.2 Exemptions. .............................................................................................................. 121  16.3 Reductions. ............................................................................................................... 123  16.4 Refunds ..................................................................................................................... 124  17. GENERAL PROVISIONS. .......................................................................................... 124  17.1 Effectiveness ............................................................................................................ 124  17.2 Section Headings ...................................................................................................... 124  17.3 Interpretation ............................................................................................................ 124  17.4 Severability of Provisions ........................................................................................ 125  





 






TABLE OF CONTENTS  (continued)  Page     -vi-      17.5 Bank Product Providers ............................................................................................ 125  17.6 Debtor-Creditor Relationship ................................................................................... 125  17.7 Counterparts; Electronic Execution .......................................................................... 126  17.8 Revival and Reinstatement of Obligations; Certain Waivers. .................................. 126  17.9 Confidentiality. ......................................................................................................... 126  17.10 Survival .................................................................................................................... 128  17.11 Patriot Act; Due Diligence ....................................................................................... 128  17.12 Integration ................................................................................................................ 129  17.13 Montana as Agent for Borrowers ............................................................................. 129  17.14 Acknowledgement and Consent to Bail-In of Affected Financial Institutions ......... 129  17.15 Acknowledgement Regarding Any Supported QFCs ............................................... 130  17.16 Erroneous Payments. ................................................................................................ 130      





 






      EXHIBITS AND SCHEDULES  Exhibit A-1 Form of Assignment and Acceptance   Exhibit B-1 Form of Borrowing Base Certificate  Exhibit C-1 Form of Compliance Certificate  Exhibit D-1   Form of U.S. Tax Compliance Certificate  Exhibit D-2   Form of U.S. Tax Compliance Certificate  Exhibit D-3   Form of U.S. Tax Compliance Certificate  Exhibit D-4   Form of U.S. Tax Compliance Certificate  Exhibit J-1 Form of Joinder    Schedule A-1 Agent’s Account  Schedule A-2 Authorized Persons  Schedule A-3   Specified Customers  Schedule C-1 Commitments  Schedule D-1 Designated Account  Schedule P-1 Permitted Investments  Schedule P-2 Permitted Liens  Schedule 3.1 Conditions Precedent  Schedule 4.1(b) Capitalization of Borrowers  Schedule 4.1(c) Capitalization of Borrowers’ Subsidiaries  Schedule 4.1(d) Subscriptions, Options, Warrants, Calls  Schedule 4.6(b) Litigation  Schedule 4.11 Environmental Matters  Schedule 4.14 Permitted Indebtedness  Schedule 4.25 Chief Executive Office   Schedule 5.1 Financial Statements, Reports, Certificates  Schedule 5.2 Collateral Reporting   Schedule 5.16   Blenders Tax Credit  Schedule 6.5 Nature of Business      





 






   -1-      CREDIT AGREEMENT  THIS CREDIT AGREEMENT, is entered into as of November 2, 2022 by and among  the lenders identified on the signature pages hereof (each of such lenders, together with its successors and  permitted assigns, is referred to hereinafter as a “Lender”, as that term is hereinafter further defined),  WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as  administrative agent for each member of the Lender Group and the Bank Product Providers (in such  capacity, together with its successors and assigns in such capacity, “Agent”), MONTANA  RENEWABLES HOLDINGS LLC, a Delaware limited liability company (“Parent”), MONTANA  RENEWABLES, LLC, a Delaware limited liability company (“Montana”, and together with those  additional Persons that are joined as a party hereto by executing the form of Joinder attached hereto as  Exhibit J-1, each, a “Borrower” and individually and collectively, jointly and severally, the “Borrowers”).  The parties agree as follows:  1. DEFINITIONS AND CONSTRUCTION.  1.1 Definitions.  As used in this Agreement, the following terms shall have the following  definitions:  “Account” means an account (as that term is defined in the Code), including all rights to  payment for goods sold or leased or for services rendered, but also including any right to payment arising  from the sale of an Environmental Credit in the ordinary course of business.  “Account Debtor” means any Person who is obligated on an Account, chattel paper, or a  general intangible.  “Account Party” has the meaning specified therefor in Section 2.11(h) of this Agreement.  “Accounting Changes” means changes in accounting principles required by the  promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards  Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with  similar functions).  “Acquisition” means (a) the purchase or other acquisition by a Person or its Subsidiaries  of all or substantially all of the assets of (or any division or business line of) any other Person, or (b) the  purchase or other acquisition (whether by means of a merger, consolidation, or otherwise) by a Person or  its Subsidiaries of all of the Equity Interests of any other Person.   “Additional Documents” has the meaning specified therefor in Section 5.12 of this  Agreement.  “Administrative Borrower” has the meaning specified therefor in Section 17.13 of this  Agreement.  “Administrative Questionnaire” has the meaning specified therefor in Section 13.1(a) of  this Agreement.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK  Financial Institution.  





 






   -2-      “Affected Lender” has the meaning specified therefor in Section 2.13(b) of this  Agreement.  “Affiliate” means, as applied to any Person, any other Person who controls, is controlled  by, or is under common control with, such Person.  For purposes of this definition, “control” means the  possession, directly or indirectly, of the power to direct the management and policies of a Person, whether  through the ownership of Equity Interests, by contract, or otherwise; provided, that for purposes of the  definition of Eligible Accounts and Section 6.10 of this Agreement: (a) if any Person owns directly or  indirectly 20% or more of the Equity Interests having ordinary voting power for the election of directors  or other members of the governing body of a Person or 10% or more of the partnership or other  ownership interests of a Person (other than as a limited partner of such Person), then both such Persons  shall be Affiliates of each other, (b) each director (or comparable manager) of a Person shall be deemed to  be an Affiliate of such Person, and (c) each partnership in which a Person is a general partner shall be  deemed an Affiliate of such Person.  “Agent” has the meaning specified therefor in the preamble to this Agreement.  “Agent-Related Persons” means Agent, together with its Affiliates, officers, directors,  employees, attorneys, and agents.  “Agent’s Account” means the Deposit Account of Agent identified on Schedule A-1 to  this Agreement (or such other Deposit Account of Agent that has been designated as such, in writing, by  Agent to Borrowers and the Lenders).  “Agent’s Liens” means the Liens granted by each Loan Party or its Restricted  Subsidiaries to Agent under the Loan Documents and securing the Obligations.  “Agreement” means this Credit Agreement, as amended, restated, amended and restated,  supplemented or otherwise modified from time to time.  “AHYDO Payment” means the minimum amount of a cash payment required to be made  by any Borrower with respect to any accrual period after the fifth anniversary of the issue date of  Borrower’s debt instrument necessary to prevent such debt instrument from being an “applicable high  yield discount obligation” within the meaning of IRC Sections 163(e)(5) and 163(i).   “Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act of 2010, as amended,  and all other applicable laws and regulations or ordinances concerning or relating to bribery or corruption  in any jurisdiction in which any Loan Party or any of its Subsidiaries is located or is doing business.  “Anti-Money Laundering Laws” means the applicable laws or regulations in any  jurisdiction in which any Loan Party or any of its Subsidiaries is located or is doing business that relates  to money laundering, any predicate crime to money laundering, or any financial record keeping and  reporting requirements related thereto.  “Applicable Margin” means, as of any date of determination and with respect to SOFR  Loans, as applicable, the applicable margin set forth in the following table that corresponds to the  Average Excess Availability of Borrowers for the most recently completed month; provided, that for the  period from the Closing Date through and including February 28, 2023, the Applicable Margin shall be  





 






   -3-      set at the margin in the row styled “Level 3”; provided further, that any time an Event of Default has  occurred and is continuing, the Applicable Margin shall be set at the margin in the row styled “Level 3”  Level Average Excess  Availability  Applicable Margin  I > 33% of the  Maximum Revolver  Amount  1.50 percentage points  II < 33% of the  Maximum Revolver  Amount and > 20% of  the Maximum  Revolver Amount  1.75 percentage points  III < 20% of the  Maximum Revolver  Amount  2.00 percentage points    The Applicable Margin shall be re-determined as of the first day of each month.   “Applicable Unused Line Fee Percentage” means 0.25%  “Application Event” means the occurrence of (a) a failure by Borrowers to repay all of  the Obligations in full on the Maturity Date, or (b) an Event of Default and the election by Agent or the  Required Lenders after the occurrence and during the continuance of an Event of Default to require that  payments and proceeds of Collateral be applied pursuant to Section 2.4(b)(iii) of this Agreement.   “Assignee” has the meaning specified therefor in Section 13.1(a) of this Agreement.  “Assignment and Acceptance” means an Assignment and Acceptance Agreement  substantially in the form of Exhibit A-1 to this Agreement.  “Authorized Person” means any one of the individuals identified as an officer of a  Borrower on Schedule A-2 to this Agreement, or any other individual identified by Administrative  Borrower as an authorized person and authenticated through Agent’s electronic platform or portal in  accordance with its procedures for such authentication.  “Availability” means, as of any date of determination, the amount that Borrowers are  entitled to borrow as Revolving Loans under Section 2.1 of this Agreement (after giving effect to the then  outstanding Revolver Usage).  “Available Increase Amount” means, as of any date of determination, an amount equal to  the result of (a) $15,000,000, minus (b) the aggregate principal amount of Increases to the Revolver  Commitments previously made pursuant to Section 2.14 of this Agreement.  





 






   -4-      “Average Excess Availability” means, with respect to any period, the sum of the  aggregate amount of Excess Availability for each day in such period (as calculated by Agent as of the end  of each respective day) divided by the number of days in such period.  “Average Revolver Usage” means, with respect to any period, the sum of the aggregate  amount of Revolver Usage for each day in such period (calculated as of the end of each respective day)  divided by the number of days in such period.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European  Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time  to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United  Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other  law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing  banks, investment firms or other financial institutions or their affiliates (other than through liquidation,  administration or other insolvency proceedings).  “Bank Product” means any one or more of the following financial products or  accommodations extended to any Loan Party or any of its Restricted Subsidiaries by a Bank Product  Provider:  (a) credit cards (including commercial cards (including so-called “purchase cards”,  “procurement cards” or “p-cards”)), (b) payment card processing services, (c) debit cards, (d) stored value  cards, (e) Cash Management Services, or (f) transactions under Hedge Agreements.  “Bank Product Agreements” means those agreements entered into from time to time by  any Loan Party or any of its Restricted Subsidiaries with a Bank Product Provider in connection with the  obtaining of any of the Bank Products.  “Bank Product Collateralization” means providing cash collateral (pursuant to  documentation reasonably satisfactory to Agent) to be held by Agent for the benefit of the Bank Product  Providers (other than the Hedge Providers) in an amount determined by Agent as sufficient to satisfy the  reasonably estimated credit exposure, operational risk or processing risk with respect to the then existing  Bank Product Obligations (other than Hedge Obligations).  “Bank Product Obligations” means (a) all obligations, liabilities, reimbursement  obligations, fees, or expenses owing by each Loan Party and its Restricted Subsidiaries to any Bank  Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for  the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now  existing or hereafter arising, (b) all Hedge Obligations, and (c) all amounts that Agent or any Lender is  obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations  from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider  with respect to the Bank Products provided by such Bank Product Provider to a Loan Party or its  Restricted Subsidiaries.  Anything to the contrary contained in the foregoing notwithstanding, the Bank  Product Obligations shall exclude any Excluded Swap Obligation.  “Bank Product Provider” means Wells Fargo or any of its Affiliates, including each of  the foregoing in its capacity, if applicable, as a Hedge Provider.  





 






   -5-      “Bank Product Reserves” means, as of any date of determination, those reserves that  Agent deems necessary or appropriate to establish (based upon the Bank Product Providers’  determination of the liabilities and obligations of each Loan Party and its Restricted Subsidiaries in  respect of Bank Product Obligations) in respect of Bank Products then provided or outstanding.  “Bankruptcy Code” means title 11 of the United States Code, as in effect from time to  time.  “Base Rate” means, for any day, the greatest of (a) zero percent (0%) per annum, (b) the  Federal Funds Rate in effect on such day plus 1⁄2%, and (c) the rate of interest announced, from time to  time, within Wells Fargo at its principal office in San Francisco as its “prime rate” in effect on such day,  with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest  of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans  making reference thereto and is evidenced by the recording thereof after its announcement in such  internal publications as Wells Fargo may designate.  “Base Rate Margin” means negative one and one-half of one percent (-1.50%), provided,  that, in the event that the calculation of any interest rate herein based on the Base Rate Margin results in  an interest rate that is less than zero percent (0%), then such interest rate shall be deemed to be zero  percent (0%).   “Benchmark” means, initially, Daily Simple SOFR, provided, that, if a Benchmark  Transition Event, has occurred with respect to Daily Simple SOFR or the then-current Benchmark, then  “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark  Replacement has become effective pursuant to the provisions of Section 2.12 of this Agreement.  “Benchmark Administrator” means, initially, the Federal Reserve Bank of New York, or  any successor administrator of the then-current Benchmark or any insolvency or resolution official with  authority over such administrator.  “Benchmark Replacement” means the sum of: (a) the alternate rate of interest that has  been selected by Agent and Administrative Borrower as the replacement for the then-current Benchmark;  and (b) the spread adjustment or method for calculating or determining such spread adjustment, (which  may be a positive or negative value or zero) that has been selected by Agent and the Administrative  Borrower, in each case, giving due consideration to (i) any selection or recommendation by the Relevant  Governmental Body at such time for a replacement rate, the mechanism for determining such a rate, the  methodology or conventions applicable to such rate, or the spread adjustment, or method for calculating  or determining such spread adjustment, for such rate, or (ii) any evolving or then-prevailing market  convention for determining a rate of interest as a replacement to the then-current Benchmark, the  methodology or conventions applicable to such rate, or the spread adjustment, or method for calculating  or determining such spread adjustment, for such alternate rate for U.S. dollar-denominated syndicated or  bilateral credit facilities at such time; provided, that, if the Benchmark Replacement as determined as  provided above would be less than zero, then the Benchmark Replacement shall be deemed to be zero.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the timing and  frequency of determining rates and making payments of interest, prepayment provisions, and other  technical, administrative or operational matters) that Agent decides may be appropriate to reflect the  adoption and implementation of such Benchmark Replacement and to permit the administration thereof  





 






   -6-      by Agent in a manner substantially consistent with market practice (or, if Agent decides that adoption of  any portion of such market practice is not administratively feasible or if Agent determines that no market  practice for the administration of the Benchmark Replacement exists, in such other manner of  administration as Agent decides is reasonably necessary in connection with the administration of this  Agreement).  “Benchmark Replacement Date” means the earlier to occur of the following events with  respect to the then-current Benchmark:  (a) in the case of clause (a) of the definition of “Benchmark Transition Event,” the  later of (i) the date of the public statement or publication of information referenced therein and (ii) the date  on which the Benchmark Administrator permanently or indefinitely ceases to provide the Benchmark; or  (b) in the case of clause (b) of the definition of “Benchmark Transition Event”, the  first date on which the Benchmark has been determined and announced by the regulatory supervisor for the  Benchmark Administrator to be no longer representative of underlying markets; provided, that such non- representativeness will be determined by reference to the most recent statement or publication referenced  in such clause (b) and even if the Benchmark continues to be provided on such date.  “Benchmark Transition Event” means the occurrence of one or more of the following  events with respect to the then-current Benchmark: (a) a public statement or publication of information by  or on behalf of the Benchmark Administrator or a regulatory supervisor for the Benchmark Administrator  announcing that (a) the Benchmark Administrator has ceased or will cease to provide the Benchmark  permanently or indefinitely or (b) the Benchmark is no longer representative.  “Benchmark Unavailability Period” means, if a Benchmark Transition Event and its  related Benchmark Replacement Date have occurred with respect to the then-current Benchmark and  solely to the extent that the Benchmark has not been replaced with a Benchmark Replacement, the period  (a) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no  Benchmark Replacement has replaced the Benchmark for all purposes hereunder in accordance with  Section 2.12 of this Agreement and (b) ending at the time that a Benchmark Replacement has replaced the  Benchmark for all purposes hereunder pursuant to Section 2.12 of this Agreement.  “Beneficial Ownership Certification” means a certification regarding beneficial  ownership as required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means a “defined benefit plan” (as defined in Section 3(35) of ERISA) for  which any Loan Party or any of its Subsidiaries or ERISA Affiliates has been an “employer” (as defined  in Section 3(5) of ERISA) within the past six years.  “BHC Act Affiliate” of a Person means an “affiliate” (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.   “Blenders Tax Credit” means (a) the $1 per gallon tax credit provided by Section 6426(c)  of the IRC, (b) any sustainable aviation fuel tax credit pursuant to Section 40B of the IRC, or any  successor provisions or amendments thereto to the producer or the first fuel blender of renewable  biodiesel or sustainable aviation fuel.  





 






   -7-       “Board of Directors” means, as to any Person, the board of directors (or comparable  managers) of such Person, or any committee thereof duly authorized to act on behalf of the board of  directors (or comparable managers).  “Board of Governors” means the Board of Governors of the Federal Reserve System of  the United States (or any successor).  “Borrower” and “Borrowers” have the respective meanings specified therefor in the  preamble to this Agreement.  “Borrower Materials” has the meaning specified therefor in Section 17.9(c) of this  Agreement.  “Borrowing” means a borrowing consisting of Revolving Loans made on the same day  by the Lenders (or Agent on behalf thereof), or by Swing Lender in the case of a Swing Loan, or by  Agent in the case of an Extraordinary Advance.  “Borrowing Base” means, as of any date of determination, the result of:  (a) 90% of Eligible Investment Grade Accounts, plus  (b) 85% of the amount of Eligible Non-Investment Grade Accounts, plus  (c) The least of, as of any date of determination, (i) 90% of the amount of Eligible  Blenders Tax Credit Accounts, (ii) $30,000,000, and (iii) an amount equal to 40% of the Line Cap, less  (d) the aggregate amount of Reserves (including, without limitation, the Dilution  Reserve and Reserves for any Indebtedness that, as of any date of determination, is maturing within  ninety (90) days from such date of determination) established by Agent from time to time under Section  2.1(c) of this Agreement.   Notwithstanding the foregoing, (i) during the Deemed Borrowing Base Period, the  Borrowing Base shall be deemed to be an amount equal to the Deemed Borrowing Base and (ii) if the  Initial Field Examination shall not have been completed and delivered to Agent on or prior to the 120th  day following the Closing Date, the Borrowing Base shall be deemed to be $0 until the date which the  Initial Field Examination shall have been completed and delivered to Agent.     “Borrowing Base Certificate” means a certificate substantially in the form of Exhibit B-1  to this Agreement, which such form of Borrowing Base Certificate may be amended, restated,  supplemented or otherwise modified from time to time (including without limitation, changes to the  format thereof), as approved by Agent in Agent’s sole discretion.  “Business Day” means any day that is not a Saturday, Sunday or other day on which  the  Federal Reserve Bank of New York is closed.  “Capital Expenditures” means, with respect to any Person for any period, the amount of  all expenditures by such Person and its Restricted Subsidiaries during such period that are capital  expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or  financed, and for the avoidance of doubt excluding amounts expended in any Acquisition.  





 






   -8-      “Capital Lease” means a lease that is required to be capitalized for financial reporting  purposes in accordance with GAAP.  “Capitalized Lease Obligation” means that portion of the obligations under a Capital  Lease that is required to be capitalized in accordance with GAAP.  “Cash Dominion Event” means the occurrence of either of the following:  (A) the  occurrence and continuance of any Event of Default, or (B) either (x) Liquidity is less than 12.5% of the  Line Cap at any time or (y) Excess Availability is less than 6.25% of the Line Cap at any time.  “Cash Dominion Period” means the period commencing upon the occurrence of a Cash  Dominion Event and continuing until the date when (A) no Event of Default shall exist and be continuing,  and (B) both (x) Liquidity is greater than 12.50% of the Line Cap and (y) Excess Availability is greater  than 6.25% of the Line Cap, in each case for thirty (30) consecutive days.  “Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally  guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of  the United States, in each case maturing within one year from the date of acquisition thereof, (b)  marketable direct obligations issued or fully guaranteed by any state of the United States or any political  subdivision of any such state or any public instrumentality thereof maturing within one year from the date  of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable  from either Standard & Poor’s Rating Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”),  (c) commercial paper maturing no more than 270 days from the date of creation thereof and, at the time of  acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of  deposit, time deposits, overnight bank deposits or bankers’ acceptances maturing within one year from the  date of acquisition thereof issued by any bank organized under the laws of the United States or any state  thereof or the District of Columbia or any United States branch of a foreign bank having at the date of  acquisition thereof combined capital and surplus of not less than $1,000,000,000, (e) Deposit Accounts  maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank  organized under the laws of the United States or any state thereof so long as the full amount maintained  with any such other bank is insured by the Federal Deposit Insurance Corporation, (f) repurchase  obligations of any commercial bank satisfying the requirements of clause (d) of this definition or of any  recognized securities dealer having combined capital and surplus of not less than $1,000,000,000, having  a term of not more than seven days, with respect to securities satisfying the criteria in clauses (a) or (d)  above, (g) debt securities with maturities of six months or less from the date of acquisition backed by  standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d)  above, and (h) Investments in money market funds substantially all of whose assets are invested in the  types of assets described in clauses (a) through (g) above. “Cash Management Services” means any cash  management or related services including treasury, depository, return items, overdraft, controlled  disbursement,  merchant store value cards, e-payables services, electronic funds transfer, interstate  depository network, automatic clearing house transfer (including the Automated Clearing House  processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash  management arrangements.  “CFC” means a controlled foreign corporation (as that term is defined in Section 957(a)  of the IRC) in which any Loan Party is a “United States shareholder” within the meaning of Section  951(b) of the IRC.  





 






   -9-      “Change in Law” means the occurrence after the date of this Agreement of:  (a) the  adoption or effectiveness of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change  in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration, interpretation,  implementation or application by any Governmental Authority of any law, rule, regulation, guideline or  treaty, (c) any new, or adjustment to, requirements prescribed by the Board of Governors for  “Eurocurrency Liabilities” (as defined in Regulation D of the Board of Governors), requirements imposed  by the Federal Deposit Insurance Corporation, or similar requirements imposed by any domestic or  foreign governmental authority or resulting from compliance by Agent or any Lender with any request or  directive (whether or not having the force of law) from any central bank or other Governmental Authority  and related in any manner to SOFR or Daily Simple SOFR or (d) the making or issuance by any  Governmental Authority of any request, rule, guideline or directive, whether or not having the force of  law; provided, that notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall  Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or  issued in connection therewith, and (ii) all requests, rules, guidelines or directives concerning capital  adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking  Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities  shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.  “Change of Control” means that:  (a) Permitted Holders fail to own and control, directly or indirectly, 20%, or more, of  the Equity Interests of Parent entitled (without regard to the occurrence of any contingency) to vote for  the election of members of the Board of Directors of Parent,  (b) Parent fails to own and control, directly or indirectly, 100% of the Equity  Interests of Borrower,   (c) Parent or Borrower fails to own and control, directly or indirectly, 100% of the  Equity Interests of each other Loan Party, except as a result a transaction expressly permitted under the  Agreement,   (d) any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the  Exchange Act), other than Permitted Holders, becomes the beneficial owner (as defined in Rule 13d-3  under the Exchange Act), directly or indirectly, of 50%, or more, of the Equity Interests of Parent entitled  (without regard to the occurrence of any contingency) to vote for the election of members of the Board of  Directors of Parent,   (e) during any period of twelve (12) consecutive months commencing on or after the  Closing Date, the occurrence of a change in the composition of the Board of Directors of Parent such that  a majority of the members of such Board of Directors are not Continuing Directors, or  (f) the occurrence of a “Change of Control” or “Change in Control” event  (howsoever defined or referred to) under any credit agreement, term loan, sale-leaseback, indenture or  other financing agreement (including the Supply and Offtake Arrangements) and any and all other loan  and/or transaction documents and agreements related to any of the foregoing under which the Borrower  may incur or become liable for Indebtedness for borrowed money (including Capitalized Lease  Obligations and reimbursement obligations with respect to letters of credit), and any replacements or  refinancings of any of the foregoing, in each case, in excess of $10,000,000, as any of the foregoing may  be amended, restated, supplemented or otherwise modified from time to time, but only if the covenants  





 






   -10-      thereunder limit or otherwise apply to any of the business, assets or operations of the Borrower and/or any  of its Restricted Subsidiaries.  “Closing Date” means November 2, 2022.  “Code” means the New York Uniform Commercial Code, as in effect from time to time.  “Collateral” means (i) all Accounts, (ii) all cash and cash equivalents (other than any  right, title or interest in or to the Macquarie Independent Amount), (iii) all deposit accounts containing  proceeds of the foregoing, (iv) all general intangibles relating to Accounts, (v) all instruments relating to  Accounts, (vi) all letter of credit rights in respect of Accounts, (vii) all books, records, ledger cards, files,  correspondence, computer programs, tapes, disks and related data processing software (owned by a Loan  Party or in which it has an interest) that at any time evidence or contain information relating to any  “Collateral” or are otherwise necessary or helpful in the collection thereof or realization thereupon, and  (viii) all other proceeds thereof now owned or hereafter acquired by any Loan Party or its Subsidiaries in  or upon which a Lien is granted by such Person in favor of Agent or the Lenders under any of the Loan  Documents.  “Collections” means, all cash, checks, notes, instruments, and other items of payment  (including insurance proceeds, cash proceeds of asset sales, rental proceeds and tax refunds).  “Commitment” means, with respect to each Lender, its Revolver Commitment, and, with  respect to all Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth  beside such Lender’s name under the applicable heading on Schedule C-1 to this Agreement or in the  Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as  such amounts may be reduced or increased from time to time pursuant to assignments made in accordance  with the provisions of Section 13.1 of this Agreement.  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.),  as amended from time to time, and any successor statute.  “Compliance Certificate” means a certificate substantially in the form of Exhibit C-1 to  this Agreement delivered by the chief financial officer or treasurer of Administrative Borrower to Agent.  “Confidential Information” has the meaning specified therefor in Section 17.9(a) of this  Agreement.  “Connection Income Taxes” means Other Connection Taxes that are imposed on or  measured by net income (however denominated) or that are franchise taxes or branch profits taxes.  “Consolidated Secured Indebtedness” means, as to any Person at any date of  determination, the aggregate principal amount of Consolidated Total Indebtedness outstanding on such  date that is secured by a Lien on any assets of the Loan Parties and their Restricted Subsidiaries  (including, without limitation, Permitted Purchase Money Indebtedness and Indebtedness arising out of  any Sale Leaseback Indebtedness, Indebtedness incurred in connection with inventory structuring  transactions, and Indebtedness incurred to finance the acquisition, design, engineering, installation or  construction cost of equipment to produce sustainable aviation fuel, in each case that is secured by a Lien  on any assets of the Loan Parties and their Restricted Subsidiaries).   





 






   -11-      “Consolidated Total Indebtedness” means, as of any date of determination, an amount  equal to the aggregate principal amount of outstanding Indebtedness of the Loan Parties and their  Restricted Subsidiaries as of such date consisting of (without duplication):  Indebtedness for borrowed  money (including purchase money indebtedness and unreimbursed outstanding drawn amounts under  funded letters of credit); debt obligations evidenced by bonds, debentures, notes or similar instruments;  Disqualified Equity Interests of the Loan Parties and their Restricted Subsidiaries, with the amount of  such Disqualified Equity Interests equal to the greater of their respective involuntary liquidation  preferences and maximum fixed repurchase prices; Permitted Purchase Money Indebtedness and  Indebtedness arising out of any Sale Leaseback Indebtedness; Indebtedness incurred in connection with  inventory structuring transactions; and Indebtedness incurred to finance the acquisition, design,  engineering, installation or construction cost of equipment to produce sustainable aviation fuel; in each  case determined on a consolidated basis in accordance with GAAP, including, in any event, but without  duplication, with respect to the Loan Parties and their Restricted Subsidiaries, the Revolver Usage and the  amount of their Capitalized Lease Obligations.   “Continuing Director” means (a) any member of the Board of Directors who was a  director (or comparable manager) of Parent on the Closing Date, and (b) any individual who becomes a  member of the Board of Directors after the Closing Date if such individual was approved, appointed or  nominated for election to the Board of Directors by either the Permitted Holders or a majority of the  Continuing Directors.  “Control Agreement” means a control agreement, in form and substance reasonably  satisfactory to Agent, executed and delivered by a Loan Party, Agent, and the applicable securities  intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account).  “Covenant Testing Period” means a period (a) commencing on the last day of the fiscal  month of Borrowers most recently ended prior to a Covenant Trigger Event for which Borrowers are  required to deliver to Agent monthly financial statements pursuant to Schedule 5.1 to this Agreement, and  (b) continuing through and including the first day after such Covenant Trigger Event that Liquidity has  equaled or exceeded 12.50% of the Line Cap for thirty (30) consecutive days.  “Covenant Trigger Event” means if at any time, Liquidity is less than 12.50% of the Line  Cap.   “Covered Entity” means any of the following:  (a) a “covered entity” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 252.82(b);  (b) a “covered bank” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 47.3(b); or  (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 382.2(b).   “Covered Party” has the meaning specified therefor in Section 17.15 of this Agreement.  “Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal  to SOFR for such day (such day, a “SOFR Determination Day”) that is two (2)  U.S. Government  





 






   -12-      Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business  Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business  Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Date, in each  case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website;  provided, that, if Daily Simple SOFR determined as provided above would be less than zero, then Daily  Simple SOFR shall be deemed to be zero.  If by 5:00 p.m. (New York City time) on the second (2nd) U.S.  Government Securities Business Day immediately following any SOFR Determination Day, SOFR in  respect of such SOFR Determination Day has not been published on the SOFR Administrator’s Website  and a Benchmark Replacement Date with respect to Daily Simple SOFR has not occurred, then SOFR for  such SOFR Determination Day will be SOFR as published in respect of the first preceding U.S.  Government Securities Business Day for which SOFR was published on the SOFR Administrator’s  Website; provided that any SOFR determined pursuant to this sentence shall be utilized for purposes of  calculation of Daily Simple SOFR for no more than three (3) consecutive SOFR Rate Days. Any change  in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date  of such change in SOFR without notice to the Borrower.  “Deemed Borrowing Base” means, as of any date of determination, an amount equal to  the result of (a) 55% of value of Borrower’s Accounts (including, without limitation, Accounts arising  from Blenders Tax Credits), as determined by Agent in its Permitted Discretion pursuant to a review of  Borrower’s balances sheets less (b) the aggregate amount of Reserves established by Agent from time to  time under Section 2.1(c) of this Agreement.   “Deemed Borrowing Base Period” means the period of time commencing on the Closing  Date and ending on the earlier of (i) the date the Initial Field Examination shall have been completed and  delivered to Agent and (ii) the 120th day following the Closing Date.   “Default” means an event, condition, or default that, with the giving of notice, the  passage of time, or both, would be an Event of Default.  “Default Right” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.   “Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of  its Loans within two Business Days of the date such Loans were required to be funded hereunder unless  such Lender notifies Agent and Administrative Borrower in writing that such failure is the result of such  Lender’s determination that one or more conditions precedent to funding (each of which conditions  precedent, together with any applicable Default or Event of Default, shall be specifically identified in  such writing) has not been satisfied, or (ii) pay to Agent, Issuing Bank, or any other Lender any other  amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit)  within two Business Days of the date when due, (b) has notified any Borrower, Agent or Issuing Bank in  writing that it does not intend to comply with its funding obligations hereunder, or has made a public  statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund  a Loan hereunder and states that such position is based on such Lender’s determination that a condition  precedent to funding (which condition precedent, together with any applicable Default or Event of  Default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has  failed, within three Business Days after written request by Agent or Administrative Borrower, to confirm  in writing to Agent and Administrative Borrower that it will comply with its prospective funding  obligations hereunder (provided, that such Lender shall cease to be a Defaulting Lender pursuant to this  clause (c) upon receipt of such written confirmation by Agent and Administrative Borrower), or (d) has,  





 






   -13-      or has a direct or indirect parent company that has, (i) become the subject of any Insolvency Proceeding,  (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit  of creditors or similar Person charged with reorganization or liquidation of its business or assets,  including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority  acting in such a capacity, or (iii) become the subject of a Bail-in Action; provided, that a Lender shall not  be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that  Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such  ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts  within the United States or from the enforcement of judgments or writs of attachment on its assets or  permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any  contracts or agreements made with such Lender.  Any determination by Agent that a Lender is a  Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding  absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of  written notice of such determination to Administrative Borrower, Issuing Bank, and each Lender.  “Defaulting Lender Rate” means (a) for the first three days from and after the date the  relevant payment is due, the Base Rate, and (b) thereafter, the interest rate then applicable to the  Revolving Loans that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto).  “Deposit Account” means any deposit account (as that term is defined in the Code).  “Designated Account” means the Deposit Account of Administrative Borrower identified  on Schedule D-1 to this Agreement (or such other Deposit Account of Administrative Borrower located at  Designated Account Bank that has been designated as such, in writing, by Borrowers to Agent).  “Designated Account Bank” has the meaning specified therefor in Schedule D-1 to this  Agreement (or such other bank that is located within the United States that has been designated as such,  in writing, by Borrowers to Agent).  “Dilution” means, as of any date of determination, a percentage, based upon the  experience of the immediately prior 3 months, that is the result of dividing the Dollar amount of (a) bad  debt write-downs, discounts, advertising allowances, credits, or other dilutive items with respect to  Borrowers’ Accounts during such period, by (b) Borrowers’ billings with respect to Accounts during such  period.  “Dilution Reserve” means, as of any date of determination, an amount sufficient to  reduce the advance rate against Eligible Accounts by the extent to which Dilution is in excess of 5% (and,  for the avoidance of doubt, no Dilution Reserve shall be imposed on the first 5% of Dilution of Eligible  Accounts and, thereafter, no Dilution Reserve shall exceed 1% for each incremental whole percentage in  Dilution of Eligible Accounts over 5%).  “Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the  terms of any security or other Equity Interests into which they are convertible or for which they are  exchangeable), or upon the happening of any event or condition (a) matures or are mandatorily  redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or  otherwise (except as a result of a change of control or asset sale so long as any rights of the holders  thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior  repayment in full of the Loans and all other Obligations that are accrued and payable and the termination  of the Commitments), (b) are redeemable at the option of the holder thereof (other than solely for  





 






   -14-      Qualified Equity Interests), in whole or in part, (c) requires the scheduled payments of dividends in cash,  or (d) are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that  would constitute Disqualified Equity Interests, in each case, prior to the date that is 180 days after the  Maturity Date.  “Disqualified Institution” means, on any date, (a) any Person designated by  Administrative Borrower as a “Disqualified Institution” by written notice delivered to Agent prior to the  date hereof, and (b) those Persons who are direct competitors of the Borrowers identified in writing by  Administrative Borrower to Agent from time to time, subject to the written consent of Agent; provided,  that “Disqualified Institutions” shall exclude any Person that Administrative Borrower has designated as  no longer being a “Disqualified Institution” by written notice delivered to Agent from time to time;  provided further, that in connection with any assignment or participation, the Assignee or Participant with  respect to such proposed assignment or participation that is an investment bank, a commercial bank, a  finance company, a fund, or other Person which merely has an economic interest in any such direct  competitor, and is not itself such a direct competitor of Borrower or its Subsidiaries, shall not be deemed  to be a Disqualified Institution for the purposes of this definition.  “Dollars” or “$” means United States dollars.  “Domestic Subsidiary” means any Subsidiary of any Loan Party that is not a Foreign  Subsidiary.  “Drawing Document” means any Letter of Credit or other document presented for  purposes of drawing under any Letter of Credit, including by electronic transmission such as SWIFT,  electronic mail, facsimile or computer generated communication.  “EBITDA” means, with respect to any fiscal period and with respect to the Loan Parties  and their Restricted Subsidiaries determined, in each case, on a consolidated basis in accordance with  GAAP:  (a) the consolidated net income (or loss) for such period,  minus  (b) without duplication, the sum of the following amounts for such period to the  extent included in determining consolidated net income (or loss) for such period:  (i) extraordinary, unusual or non-recurring gains, and  (ii) interest income,   (iii) to extent included in consolidated net income, unrealized gains resulting  from mark to market accounting for hedging activities, including, without limitation, those resulting from  the application of FASB ASC 815,  (iv) realized losses under derivative instruments excluded from the  determination of consolidated net income, including, without limitation, those resulting from the  application of FASB ASC 815,  plus  





 






   -15-      (c) without duplication, the sum of the following amounts for such period to the  extent deducted in determining consolidated net income (or loss) for such period:  (i) non-cash unusual or non-recurring losses,  (ii) Interest Expense,  (iii)  the provision for Federal, state, local and foreign income Taxes payable,   (iv) depreciation and amortization (including amortization of intangibles but  excluding amortization of prepaid cash expenses that were paid in a prior period) and non-cash equity  based compensation expense,   (v) any non-recurring, non-cash charges relating to any premium or penalty  paid, write off of deferred finance costs or other charges in connection with redeeming or retiring any  Indebtedness prior to its stated maturity,   (vi) net non-cash losses realized on the disposition of property,   (vii) unrealized losses resulting from mark to market accounting for hedging  activities, including, without limitation those resulting from the application of FASB Accounting  Standards Codification 815 ("FASB ASC 815"),  (viii) realized gains under derivative instruments excluded from the  determination of Consolidated Net Income, including, without limitation, those resulting from the  application of FASB ASC 815,   (ix) unrealized non-cash losses resulting from foreign currency balance sheet  adjustments required by GAAP,   (x) other extraordinary, unusual or non-recurring expenses and restructuring  charges reducing such consolidated net income which do not represent a cash item in such period,   (xi) impairment and other non-cash items other than write downs of current  assets for such period (excluding any such non-cash item to the extent that it represents an accrual of or  reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a  prior period), and   (xii) to the extent reducing such consolidated net income, severance costs and  legal and advisory costs specifically identified in a business acquisition or business disposition in an  aggregate amount not to exceed $15,000,000 in any four fiscal quarter period.  For the avoidance of doubt, “consolidated net income” for any period shall be calculated  (a) without giving effect to the cumulative effect of a change in accounting principle, (b) net income of  any Person that is accounted for by the equity method of accounting will be included, but only to the  extent of the amount of dividends or distributions paid in cash during the calculation period to a Loan  Party or a Restricted Subsidiary thereof and (c) net losses of any Person that is accounted for by the  equity method of accounting will be included, but only to the extent of the value of any contributions to  capital (in cash or in the form of other assets) made to such Person by a Loan Party or a Restricted  Subsidiary thereof.   





 






   -16-      “EEA Financial Institution” means (a) any credit institution or investment firm  established in any EEA Member Country which is subject to the supervision of an EEA Resolution  Authority, (b) any entity established in an EEA Member Country which is a parent of an institution  described in clause (a) of this definition, or (c) any financial institution established in an EEA Member  Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is  subject to consolidated supervision with its parent.  “EEA Member Country” means any of the member states of the European Union,  Iceland, Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any person  entrusted with public administrative authority of any EEA Member Country (including any delegee)  having responsibility for the resolution of any EEA Financial Institution.  “Eligible Accounts” means those Accounts created by a Borrower in the ordinary course  of its business, that arise out of such Borrower’s sale of goods, sale of any right, title or interest in or to  any Environmental Credits, or rendition of services, that comply with each of the representations and  warranties respecting Eligible Accounts made in the Loan Documents, and that are not excluded as  ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria  may be revised from time to time by Agent in Agent’s Permitted Discretion to address the results of any  information with respect to the Borrowers’ business or assets of which Agent becomes aware after the  Closing Date, including any field examination performed by (or on behalf of) Agent from time to time  after the Closing Date.  In determining the amount to be included, Eligible Accounts shall be calculated  net of customer deposits, unapplied cash, Taxes, finance charges, service charges, discounts, credits,  allowances, and rebates.  Eligible Accounts shall not include the following:  (a) Accounts that the Account Debtor has failed to pay within 45 days of original  invoice date or 30 days of due date,  (b) Accounts owed by an Account Debtor (or its Affiliates) where 50% or more of  all Accounts owed by that Account Debtor (or its Affiliates) are deemed ineligible under clause (a) above,  (c) Accounts with respect to which the Account Debtor is an Affiliate of any  Borrower or an employee or agent of any Borrower or any Affiliate of any Borrower,  (d) Accounts (i) arising in a transaction wherein goods are placed on consignment or  are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other  terms by reason of which the payment by the Account Debtor may be conditional, or (ii) with respect to  which the payment terms are “C.O.D.”, cash on delivery or other similar terms,  (e) Accounts that are not payable in Dollars or Canadian Dollars,  (f) Accounts with respect to which the Account Debtor either (i) does not maintain  its chief executive office in the United States or Canada, or (ii) is not organized under the laws of the  United States or Canada or any state or province thereof, or (iii) is the government of any foreign country  or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any  department, agency, public corporation, or other instrumentality thereof, unless (A) the Account is  supported by an irrevocable letter of credit reasonably satisfactory to Agent (as to form, substance, and  issuer or domestic confirming bank) that has been delivered to Agent and, if requested by Agent, is  





 






   -17-      directly drawable by Agent, or (B) the Account is covered by credit insurance in form, substance, and  amount, and by an insurer, reasonably satisfactory to Agent,  (g) Accounts with respect to which the Account Debtor is either (i) the United States  or any department, agency, or instrumentality of the United States (exclusive, however, of Accounts with  respect to which Borrowers have complied, upon request of Agent therefor and to the reasonable  satisfaction of Agent, with the Assignment of Claims Act, 31 USC §3727), (ii) any state of the United  States or any other Governmental Authority, (iii) Canada or any department, agency, or instrumentality of  Canada (exclusive, however, of Accounts with respect to which Borrowers have complied, upon request  of Agent therefor and to the reasonable satisfaction of Agent, with the Financial Administration Act  (Canada), as amended), or (iv) any province or territory of Canada,   (h) Accounts with respect to which the Account Debtor is a creditor of a Borrower  (including in respect of any Blenders Tax Credit due from Borrower), has or has asserted a right of  recoupment or setoff, or has disputed its obligation to pay all or any portion of the Account, to the extent  of such Blenders Tax Credit obligation of such Borrower, claim, right of recoupment or setoff, or dispute,  (i) Accounts with respect to an Account Debtor whose Eligible Accounts owing to  Borrowers exceed (x) with respect to Investment Grade Account Debtors that are Specified Customers,  (A) during the period from the Closing Date through the first anniversary of the Closing Date, 65% of all  Eligible Accounts, and (B) at all times thereafter, 50% of all Eligible Accounts, (y) with respect to all  other Investment Grade Account Debtors, 35% of all Eligible Accounts, and (z) with respect to all other  Account Debtors, 20% of all Eligible Accounts (such percentages, as applied to a particular Account  Debtor, being subject to reduction by Agent in its Permitted Discretion if the creditworthiness of such  Account Debtor deteriorates), in each case to the extent of the obligations owing by such Account Debtor  in excess of such percentage; provided, that in each case, the amount of Eligible Accounts that are  excluded because they exceed the foregoing percentage shall be determined by Agent based on all of the  otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing  concentration limit,  (j) Accounts with respect to which the Account Debtor is subject to an Insolvency  Proceeding, is not Solvent, has gone out of business, or as to which any Borrower has received notice of  an imminent Insolvency Proceeding or a material impairment of the financial condition of such Account  Debtor,  (k) Accounts, the collection of which, Agent, in its Permitted Discretion, believes to  be doubtful, including by reason of the Account Debtor’s financial condition,  (l) Accounts that are not subject to a valid and perfected first priority Agent’s Lien,  (m) Accounts with respect to which (i) the goods giving rise to such Account have  not been shipped and billed to the Account Debtor, or (ii) the services giving rise to such Account have  not been performed and billed to the Account Debtor,  (n) Accounts with respect to which the Account Debtor is a Sanctioned Person or  Sanctioned Entity,   





 






   -18-      (o) Accounts (i) that represent the right to receive progress payments or other  advance billings that are due prior to the completion of performance by the applicable Borrower of the  subject contract for goods or services, or (ii) that represent credit card sales;   (p) Accounts owned by a target acquired in connection with a Permitted Investment,  or Accounts owned by a Person that is joined to this Agreement as a Borrower pursuant to the provisions  of this Agreement, until the completion of a field examination with respect to such Accounts, in each  case, satisfactory to Agent in its Permitted Discretion;   (q) any Blenders Tax Credit due to a Borrower, whether from an Account Debtor, as  a refundable tax credit under the IRC, or otherwise; or  (r) Environmental Credits that do not satisfy all requirements of applicable law with  respect thereto.  “Eligible Blenders Tax Credit Accounts” means those Accounts created by Borrower in  the ordinary course of its business owing by the Department of Treasury in respect of the “biodiesel  mixture credit” (provided in section 6426 of the Internal Revenue Code of 1986, as amended, which  allows a credit against motor fuel excise taxes imposed by section 4081 of the Internal Revenue Code of  1986, as amended, together with any successor provisions thereto that provide for similar credit or any  substitute credit that provides substantially equivalent economic benefit to Borrower) to which Borrower  is entitled at that time from its blending or production of biodiesel, and that are not excluded as ineligible  by virtue of one or more of the excluding criteria set forth below; provided, however, that such criteria  may be revised from time to time by Agent in Agent’s Permitted Discretion to address the results of any  information with respect to the Borrowers’ business or assets of which Agent becomes aware after the  Closing Date, including any field examination or audit performed by (or on behalf of) Agent from time to  time after the Closing Date. Eligible Blenders Tax Credit Accounts shall not include the following:  (a) Accounts with respect to which Borrower has not filed Form 8849 or 720 (or other  appropriate approval form), together with the appropriate documents, with Department of Treasury to  substantiate its claim for such credit,  (b) Accounts with respect to which Department of Treasury or Internal Revenue  Service has disputed or rejected the amount thereof,  (c) Accounts which Borrower intends to apply as a credit against Taxes as opposed to  receiving a payment for such Accounts, and  (d) (x) Prior to the date which is six months from the Closing Date, Accounts that the  Account Debtor has failed to pay within 120 days of submission of the appropriate documents to  Department of Treasury (it being acknowledged and agreed that, so long as Borrowers are diligently and in  good faith pursuing the collection of such Accounts, Agent agrees to consider in good faith any reasonable  request by Borrowers for a limited extension the date set forth in this clause (x)) and (y) at all times  thereafter, Accounts that the Account Debtor has failed to pay within 60 days of submission of the  appropriate documents to Department of Treasury.   “Eligible Investment Grade Accounts” means any Eligible Accounts that are Investment  Grade Accounts.  





 






   -19-      “Eligible Non-Investment Grade Accounts” means any Eligible Accounts that are not  Eligible Investment Grade Accounts.   “Eligible Transferee” means (a) any Lender (other than a Defaulting Lender), any  Affiliate of any Lender and any Related Fund of any Lender; (b) (i) a commercial bank organized under  the laws of the United States or any state thereof, and having total assets in excess of $1,000,000,000; (ii)  a savings and loan association or savings bank organized under the laws of the United States or any state  thereof, and having total assets in excess of $1,000,000,000; (iii) a commercial bank organized under the  laws of any other country or a political subdivision thereof; provided, that (A) (x) such bank is acting  through a branch or agency located in the United States, or (y) such bank is organized under the laws of a  country that is a member of the Organization for Economic Cooperation and Development or a political  subdivision of such country, and (B) such bank has total assets in excess of $1,000,000,000; (c) any other  entity (other than a natural person) that is an “accredited investor” (as defined in Regulation D under the  Securities Act) that extends credit or buys loans as one of its businesses including insurance companies,  investment or mutual funds and lease financing companies, and having total assets in excess of  $1,000,000,000; and (d) during the continuation of an Event of Default, any other Person approved by  Agent.  “Environmental Action” means any written complaint, summons, citation, notice,  directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter, or  other written communication from any Governmental Authority, or any third party involving violations of  Environmental Laws or releases of Hazardous Materials (a) from any assets, properties, or businesses of  any Borrower, any Restricted Subsidiary of any Borrower, or any of their predecessors in interest, (b)  from adjoining properties or businesses, or (c) from or onto any facilities which received Hazardous  Materials generated by any Borrower, any Restricted Subsidiary of any Borrower, or any of their  predecessors in interest.  “Environmental Credits” means (i) renewable identification numbers associated with the  United States government-mandated renewable fuel standards and (ii) environmental pollution credits  arising from the sale by an Obligor of commodities for which the United States Environmental Protection  Agency, Internal Revenue Service or similar state Governmental Authority accords favorable treatment  that gives rise to production licenses or tax benefits that may be purchased by third party producers, in  each case which are owned by a Borrower and which satisfy all requirements of applicable law with  respect thereto.   “Environmental Law” means any applicable federal, state, provincial, foreign or local  statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable  written policy, or rule of common law now or hereafter in effect and in each case as amended, or any  judicial or administrative interpretation thereof, including any judicial or administrative order, consent  decree or judgment, in each case, to the extent binding on any Loan Party or its Restricted Subsidiaries,  relating to the environment or the effect of Hazardous Materials on employee health, in each case as  amended from time to time.  “Environmental Liabilities” means all liabilities, monetary obligations, losses, damages,  costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts, or  consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest  incurred as a result of any claim or demand, or Remedial Action required, by any Governmental  Authority or any third party, and which relate to any Environmental Action.  





 






   -20-      “Environmental Lien” means any Lien in favor of any Governmental Authority for  Environmental Liabilities.  “Equipment” means equipment (as that term is defined in the Code).  “Equity Interests” means, with respect to a Person, all of the shares, options, warrants,  interests, participations, or other equivalents (regardless of how designated) of or in such Person, whether  voting or nonvoting, including capital stock (or other ownership or profit interests or units), preferred  stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and  Regulations promulgated by the SEC under the Exchange Act).  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended,  and any successor statute thereto.  “ERISA Affiliate” means (a) any Person subject to ERISA whose employees are treated  as employed by the same employer as the employees of any Loan Party or its Subsidiaries under IRC  Section 414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by  the same employer as the employees of any Loan Party or its Subsidiaries under IRC Section 414(c), (c)  solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to  ERISA that is a member of an affiliated service group of which any Loan Party or any of its Subsidiaries  is a member under IRC Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section  412 of the IRC, any Person subject to ERISA that is a party to an arrangement with any Loan Party or any  of its Subsidiaries and whose employees are aggregated with the employees of such Loan Party or its  Subsidiaries under IRC Section 414(o).  “Erroneous Payment” has the meaning specified therefor in Section 17.16 of this  Agreement.  “Erroneous Payment Deficiency Assignment” has the meaning specified therefor in  Section 17.16 of this Agreement.  “Erroneous Payment Impacted Loans” has the meaning specified therefor in Section  17.16 of this Agreement.  “Erroneous Payment Return Deficiency” has the meaning specified therefor in Section  17.16 of this Agreement.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor person), as in effect from time to time.  “Event of Default” has the meaning specified therefor in Section 8 of this Agreement.  “Excess” has the meaning specified therefor in Section 2.14 of this Agreement.  “Excess Availability” means, as of any date of determination, the amount equal to  Availability minus the aggregate amount, if any, of all trade payables of the Loan Parties and their  Restricted Subsidiaries aged in excess of historical levels with respect thereto and all book overdrafts of  the Loan Parties and their Restricted Subsidiaries in excess of historical practices with respect thereto, in  each case as determined by Agent in its Permitted Discretion.   





 






   -21-      “Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to  time.  “Excluded Subsidiary” means (a) any Subsidiary of a Loan Party to the extent that the  burden or cost (including any potential Tax liability) of obtaining a guarantee outweighs the benefit  afforded thereby as reasonably determined by Borrowers and Agent, (b) any Foreign Subsidiary of a Loan  Party that is a CFC, (c) any Domestic Subsidiary of a Loan Party that is a direct or indirect subsidiary of a  Foreign Subsidiary that is a CFC, (d) any not-for-profit subsidiary or captive insurance subsidiary, (e) any  Immaterial Subsidiary, or (f) any Unrestricted Subsidiary.  “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 guaranty of such Loan Party of (including by  virtue of the joint and several liability provisions of Section 2.15), or the grant by such Loan Party of a  security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the  Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading  Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s  failure for any reason to constitute an “eligible contract participant” as defined in the Commodity  Exchange Act and the regulations thereunder at the time the guaranty of such Loan Party or the grant of  such security interest becomes effective with respect to such Swap Obligation.  If a Swap Obligation  arises under a master agreement governing more than one swap, such exclusion shall apply only to the  portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest  is or becomes illegal.  “Excluded Taxes” means (i) any Tax imposed on or measured by the net income or net  profits of any Lender or any Participant (however denominated), franchise taxes and branch profits taxes,  in each case imposed by the jurisdiction (or by any political subdivision or taxing authority thereof) in  which such Lender or such Participant is organized or the jurisdiction (or by any political subdivision or  taxing authority thereof) in which such Lender’s or such Participant’s principal office or applicable  lending office is located in or as a result of a present or former connection between such Lender or such  Participant and the jurisdiction or taxing authority imposing the tax (other than any such connection  arising solely from such Lender or such Participant having executed, delivered or performed its  obligations or received payment under, or enforced its rights or remedies under this Agreement or any  other Loan Document), (ii) United States federal withholding taxes that would not have been imposed but  for a Lender’s or a Participant’s failure to comply with the requirements of Section 16.2 of this  Agreement, (iii) any United States federal withholding taxes imposed on amounts payable to a Foreign  Lender pursuant to laws and based upon the applicable withholding rate in effect at the time such Foreign  Lender becomes a party to this Agreement (or designates a new lending office, other than a designation  made at the request of a Loan Party), except that Excluded Taxes shall not include (A) any amount that  such Foreign Lender (or its assignor, if any) was previously entitled to receive pursuant to Section 16.1 of  this Agreement, if any, with respect to such withholding tax at the time such Foreign Lender becomes a  party to this Agreement (or designates a new lending office), and (B) additional United States federal  withholding taxes that may be imposed after the time such Foreign Lender becomes a party to this  Agreement (or designates a new lending office), as a result of a change in law, rule, regulation, treaty,  order or other decision or other Change in Law with respect to any of the foregoing by any Governmental  Authority and (iv) any United States federal withholding taxes imposed under FATCA.   “Extraordinary Advances” has the meaning specified therefor in Section 2.3(d)(iii) of this  Agreement.  





 






   -22-      “FATCA” means Sections 1471 through 1474 of the IRC, as of the date of this  Agreement (or any amended or successor version that is substantively comparable and not materially  more onerous to comply with), and (a) any current or future regulations or official interpretations thereof,  (b) any applicable agreements entered into pursuant to Section 1471(b)(1) of the IRC, and (c) any  applicable intergovernmental agreement entered into by the United States (or any fiscal or regulatory  legislation, rules, or practices adopted pursuant to any such intergovernmental agreement entered into in  connection therewith).  “FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and  regulations thereunder.  “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal  to, for each day during such period, the weighted average of the rates on overnight Federal funds  transactions with members of the Federal Reserve System, as published on the next succeeding Business  Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a  Business Day, the average of the quotations for such day on such transactions received by Agent from  three Federal funds brokers of recognized standing selected by it (and, if any such rate is below zero, then  the rate determined pursuant to this definition shall be deemed to be zero).  “Fee Letter” means that certain fee letter, dated as of even date with this Agreement,  among Borrowers and Agent, in form and substance reasonably satisfactory to Agent.  “Fixed Charge Coverage Ratio” means, with respect to any fiscal period and with respect  to the Loan Parties and their Restricted Subsidiaries determined on a consolidated basis in accordance  with GAAP, the ratio of (a) EBITDA for such period minus Unfinanced Capital Expenditures made (to  the extent not already incurred in a prior period) or incurred during such period, to (b) Fixed Charges for  such period.  “Fixed Charges” means, with respect to any fiscal period and with respect to the Loan  Parties and their Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP,  the sum, without duplication, of (a) Interest Expense required to be paid (other than interest paid-in-kind,  amortization of financing fees, and other non-cash Interest Expense) during such period, (b) scheduled  principal payments in respect of Indebtedness that are paid (or required to be paid) during such period  (including any required payments or prepayments from excess cash flow during such period), (c) all  federal, state, and local income taxes required to be paid during such period, (d) all management,  consulting, monitoring, and advisory fees paid to any Affiliate of any Loan Party that is not a Loan Party  itself, (e) any regularly scheduled payments made in respect of Sale Leasebacks, (f) all Restricted  Payments paid (whether in cash or other property, other than in Qualified Equity Interests) other than to  any Loan Party during such period, and (g) any payments on account of Disqualified Equity Interests or  preferred Equity Interests (whether in the nature of dividends, redemption, repurchase or otherwise)  required to be made in cash in such period, other than to any Loan Party.  “Flood Laws” means the National Flood Insurance Act of 1968, Flood Disaster  Protection Act of 1973, and related laws, rules and regulations, including any amendments or successor  provisions.  “Foreign Lender” means any Lender or Participant that is not a U.S. Person.  





 






   -23-      “Foreign Subsidiary” means any direct or indirect subsidiary of any Loan Party that is,  for U.S. federal income tax purposes, treated as organized under the laws of any jurisdiction other than  the United States, any state thereof or the District of Columbia.  “Funding Date” means the date on which a Borrowing occurs.  “GAAP” means generally accepted accounting principles as in effect from time to time in  the United States, consistently applied.  “Governing Documents” means, with respect to any Person, the certificate or articles of  incorporation, by-laws, or other organizational documents of such Person.  “Governmental Authority” means the government of any nation or any political  subdivision thereof, whether at the national, state, territorial, provincial, county, municipal or any other  level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity  exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or  pertaining to, government (including any supra-national bodies such as the European Union or the  European Central Bank).  “Guarantor” means (a) Parent and (b) each Person that guaranties all or a portion of the  Obligations, including any Person that is a “Guarantor” under the Guaranty and Security Agreement, and  (b) each other Person that becomes a guarantor after the Closing Date pursuant to Section 5.11 of this  Agreement.  “Guaranty and Security Agreement” means a guaranty and security agreement, dated as  of even date with this Agreement, in form and substance reasonably satisfactory to Agent, executed and  delivered by each of the Loan Parties to Agent.  “Hazardous Materials” means (a) substances that are defined or listed in, or otherwise  classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous  materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or  classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity,  carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or petroleum derived  substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other  wastes associated with the exploration, development, or production of crude oil, natural gas, or  geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and (d)  asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of  polychlorinated biphenyls in excess of 50 parts per million.  “Hedge Agreement” means a “swap agreement” as that term is defined in Section  101(53B)(A) of the Bankruptcy Code.  “Hedge Obligations” means any and all obligations or liabilities, whether absolute or  contingent, due or to become due, now existing or hereafter arising, of each Loan Party and its Restricted  Subsidiaries arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into  with one or more of the Hedge Providers.  “Hedge Provider” means Wells Fargo or any of its Affiliates.  





 






   -24-      “Immaterial Subsidiary” means one or more Subsidiaries with annual revenues less than  $10,000 individually and $20,000 in the aggregate and owning assets of less than $10,000 individually  and $20,000 in the aggregate.  “Increase” has the meaning specified therefor in Section 2.14.  “Increase Date” has the meaning specified therefor in Section 2.14.  “Increase Joinder” has the meaning specified therefor in Section 2.14.  “Increased Reporting Event” means if at any time, Liquidity is less than 12.50% of the  Line Cap.  “Increased Reporting Period” means the period commencing after the occurrence and  continuance of an Increased Reporting Event and continuing until the date when no Increased Reporting  Event has occurred for 30 consecutive days.  “Indebtedness” as to any Person means (a) all obligations of such Person for borrowed  money, (b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar  instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances,  or other financial products, (c) all obligations of such Person as a lessee under Capital Leases, (d) all  obligations or liabilities of others secured by a Lien on any asset of such Person, irrespective of whether  such obligation or liability is assumed, (e) all obligations of such Person to pay the deferred purchase  price of assets (other than trade payables incurred in the ordinary course of business and repayable in  accordance with customary trade practices and, for the avoidance of doubt, other than royalty payments  payable in the ordinary course of business in respect of non-exclusive licenses) and any earn-out or  similar obligations, (f) all monetary obligations of such Person owing under Hedge Agreements (which  amount shall be calculated based on the amount that would be payable by such Person if the Hedge  Agreement were terminated on the date of determination), (g) any Disqualified Equity Interests of such  Person, valued, as of the date of determination, at the greater of (i) the maximum aggregate amount that  would be payable upon maturity, redemption, repayment or repurchase thereof (or of Disqualified Equity  Interests or Indebtedness into which such Disqualified Equity Interests are convertible or exchangeable)  and (ii) the maximum liquidation preference of such Disqualified Equity Interests, (h) all obligations of  such Person owing under any Sale Leasebacks, (i) all obligations of such Person under conditional sale or  other title retention agreements relating to property purchased by such Person (other than customary  reservations or retentions of title under agreements with suppliers entered into in the ordinary course of  business); and (j) any obligation of such Person guaranteeing or intended to guarantee (whether directly  or indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any  other Person that constitutes Indebtedness under any of clauses (a) through (i) above.  For purposes of this  definition, (i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall  be the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum  amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument  embodying such Indebtedness, and (ii) the amount of any Indebtedness which is limited or is non- recourse to a Person or for which recourse is limited to an identified asset shall be valued at the lesser of  (A) if applicable, the limited amount of such obligations, and (B) if applicable, the fair market value of  such assets securing such obligation.  “Indemnified Liabilities” has the meaning specified therefor in Section 10.3 of this  Agreement.  





 






   -25-      “Indemnified Person” has the meaning specified therefor in Section 10.3 of this  Agreement.  “Indemnified Taxes” means, (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by, or on account of any obligation of, any Loan Party under any Loan  Document, and (b) to the extent not otherwise described in the foregoing clause (a), Other Taxes.  “Initial Field Examination” means the initial field examination of the Collateral received  by Agent (i) which will be or was conducted in such a manner and methodology and of such a scope as is  reasonably acceptable to the Agent (in its Permitted Discretion); and (ii) upon which the Agent is  expressly permitted to rely.    “Insolvency Proceeding” means any proceeding commenced by or against any Person  under any provision of the Bankruptcy Code or under any other state or federal bankruptcy or insolvency  law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions  generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.  “Interest Expense” means, for any period, the aggregate of the interest expense of  Borrowers for such period, determined on a consolidated basis in accordance with GAAP.  “Inventory” means inventory (as that term is defined in the Code).  “Investment” means, with respect to any Person, any investment by such Person in any  other Person (including Affiliates) in the form of loans, guarantees, advances, capital contributions  (excluding (a) commission, travel, and similar advances to officers and employees of such Person made in  the ordinary course of business, and (b) bona fide accounts receivable arising in the ordinary course of  business), or acquisitions of Indebtedness, Equity Interests, or all or substantially all of the assets of such  other Person (or of any division or business line of such other Person), and any other items that are or  would be classified as investments on a balance sheet prepared in accordance with GAAP.  The amount of  any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without  any adjustment for increases or decreases in value, or write-ups, write-downs, or write-offs with respect to  such Investment.  If Parent or any Restricted Subsidiary sells or otherwise disposes of any Equity  Interests of any Restricted Subsidiary of Parent such that, after giving effect to any such sale or  Disposition, such Person is no longer a Restricted Subsidiary of Parent, or designates such Person an  Unrestricted Subsidiary, then Parent will be deemed to have made an Investment on the date of any such  sale, disposition or designation in an amount equal to the fair market value of the Equity Interests of such  former Restricted Subsidiary not sold or otherwise disposed of, or, in the case of an Unrestricted  Subsidiary designation, all of the Equity Interests of such former Restricted Subsidiary (with the fair  market value of any such Investment determined reasonably and in good faith, in the case of amounts less  than $35,000,000, by an officer of Parent and, in the case of amounts equal to or greater than  $35,000,000, by the board of managers of Parent).    “Investment Grade Account” means an account owing by an account debtor with a rating  equal to or higher than Baa3 (or the equivalent) by Moody’s and/or BBB- (or the equivalent) by S&P, or  an equivalent rating by any other nationally recognized statistical rating agency selected by Borrowers.   As of the Closing Date, Sumitomo Accounts constitute Investment Grade Accounts hereunder in  accordance with this definition.  “IRC” means the Internal Revenue Code of 1986, as amended and as in effect from time  to time.  





 






   -26-      “ISP” means, with respect to any Letter of Credit, the International Standby Practices  1998 (International Chamber of Commerce Publication No. 590) and any version or revision thereof  accepted by the Issuing Bank for use.  “Issuer Document” means, with respect to any Letter of Credit, a letter of credit  application, a letter of credit agreement, or any other document, agreement or instrument entered into (or  to be entered into) by a Borrower in favor of Issuing Bank and relating to such Letter of Credit.  “Issuing Bank” means Wells Fargo or any other Lender that, at the request of Borrowers  and with the consent of Agent, agrees, in such Lender’s sole discretion, to become an Issuing Bank for the  purpose of issuing Letters of Credit pursuant to Section 2.11 of this Agreement, and Issuing Bank shall be  a Lender.  “Joinder” means a joinder agreement substantially in the form of Exhibit J-1 to this  Agreement.  “Lender” has the meaning set forth in the preamble to this Agreement, shall include  Issuing Bank and the Swing Lender, and shall also include any other Person made a party to this  Agreement pursuant to the provisions of Section 13.1 of this Agreement and “Lenders” means each of the  Lenders or any one or more of them.  “Lender Group” means each of the Lenders (including Issuing Bank and the Swing  Lender) and Agent, or any one or more of them.  “Lender Group Expenses” means all (a) costs or expenses (including taxes and insurance  premiums) required to be paid by any Loan Party or its Restricted Subsidiaries under any of the Loan  Documents that are paid, advanced, or incurred by the Lender Group, (b) reasonable and documented out- of-pocket fees or charges paid or incurred by Agent in connection with the Lender Group’s transactions  with each Loan Party and its Restricted Subsidiaries under any of the Loan Documents, including,  photocopying, notarization, couriers and messengers, telecommunication, public record searches, filing  fees, recording fees, publication, real estate surveys, real estate title policies and endorsements, and  environmental audits, (c) Agent’s customary fees and charges imposed or incurred in connection with any  background checks or OFAC/PEP searches related to any Loan Party or its Restricted Subsidiaries, (d)  Agent’s customary fees and charges (as adjusted from time to time) with respect to the disbursement of  funds (or the receipt of funds) to or for the account of any Borrower (whether by wire transfer or  otherwise), together with any reasonable and documented out-of-pocket costs and expenses incurred in  connection therewith, (e) customary charges imposed or incurred by Agent resulting from the dishonor of  checks payable by or to any Loan Party, (f) reasonable, documented out-of-pocket costs and expenses  paid or incurred by the Lender Group to correct any default or enforce any provision of the Loan  Documents, or during the continuance of an Event of Default, in gaining possession of, maintaining,  handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or  any portion thereof, irrespective of whether a sale is consummated, (g) field examination, appraisal, and  valuation fees and expenses of Agent related to any field examinations, appraisals, or valuation to the  extent of the fees and charges (and up to the amount of any limitation) provided in Section 5.7(c) of this  Agreement, (h) Agent’s and Lenders’ reasonable, documented out-of-pocket costs and expenses  (including reasonable and documented attorneys’ fees and expenses) relative to third party claims or any  other lawsuit or adverse proceeding paid or incurred, whether in enforcing or defending the Loan  Documents or otherwise in connection with the transactions contemplated by the Loan Documents,  Agent’s Liens in and to the Collateral, or the Lender Group’s relationship with any Loan Party or any of  





 






   -27-      its Restricted Subsidiaries, (i) Agent’s reasonable and documented out-of-pocket costs and expenses  (including reasonable and documented attorneys’ fees and due diligence expenses) incurred in advising,  structuring, drafting, reviewing, administering (including travel, meals, and lodging), syndicating  (including reasonable costs and expenses relative to CUSIP, DXSyndicateTM, SyndTrak or other  communication costs incurred in connection with a syndication of the loan facilities), or amending,  waiving, or modifying the Loan Documents, and (j) Agent’s and each Lender’s reasonable and  documented costs and expenses (including reasonable and documented attorneys, accountants,  consultants, and other advisors fees and expenses) incurred in terminating, enforcing (including attorneys,  accountants, consultants, and other advisors fees and expenses incurred in connection with a “workout,” a  “restructuring,” or an Insolvency Proceeding concerning any Loan Party or any of its Restricted  Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the Loan  Documents, irrespective of whether a lawsuit or other adverse proceeding is brought, or in taking any  enforcement action or any Remedial Action with respect to the Collateral, provided, that, the reasonable,  documented out-of-pocket fees and expenses of counsel that shall constitute Lender Group Expenses for  any purpose shall be limited to (A) one outside primary counsel to Agent and Lenders, (B) any special or  local legal counsel (limited to one local counsel in each relevant jurisdiction) as shall be reasonably  determined to be necessary by Agent, and (C) one or more additional counsels to the extent reasonably  necessary in light of conflicts of interest arise, it being acknowledged that the documentation for fees and  expenses of counsel may be provided as summary invoices.  “Lender Group Representatives” has the meaning specified therefor in Section 17.9 of  this Agreement.  “Lender-Related Person” means, with respect to any Lender, such Lender, together with  such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.  “Letter of Credit” means a letter of credit (as that term is defined in the Code) issued by  Issuing Bank.  “Letter of Credit Collateralization” means either (a) providing cash collateral (pursuant to  documentation reasonably satisfactory to Agent (including that Agent has a first priority perfected Lien in  such cash collateral), including provisions that specify that the Letter of Credit Fees and all commissions,  fees, charges and expenses provided for in Section 2.11(k) of this Agreement (including any fronting  fees) will continue to accrue while the Letters of Credit are outstanding) to be held by Agent for the  benefit of the Revolving Lenders in an amount equal to 103% of the then existing Letter of Credit Usage,  (b) delivering to Agent documentation executed by all beneficiaries under the Letters of Credit, in form  and substance reasonably satisfactory to Agent and Issuing Bank, terminating all of such beneficiaries’  rights under the Letters of Credit, or (c) providing Agent with a standby letter of credit, in form and  substance reasonably satisfactory to Agent, from a commercial bank acceptable to Agent (in its sole  discretion) in an amount equal to 103% of the then existing Letter of Credit Usage (it being understood  that the Letter of Credit Fee and all fronting fees set forth in this Agreement will continue to accrue while  the Letters of Credit are outstanding and that any such fees that accrue must be an amount that can be  drawn under any such standby letter of credit).  “Letter of Credit Disbursement” means a payment made by Issuing Bank pursuant to a  Letter of Credit.  





 






   -28-      “Letter of Credit Exposure” means, as of any date of determination with respect to any  Lender, such Lender’s participation in the Letter of Credit Usage pursuant to Section 2.11(e) on such  date.  “Letter of Credit Fee” has the meaning specified therefor in Section 2.6(b) of this  Agreement.  “Letter of Credit Indemnified Costs” has the meaning specified therefor in Section  2.11(f) of this Agreement.  “Letter of Credit Related Person” has the meaning specified therefor in Section 2.11(f) of  this Agreement.  “Letter of Credit Sublimit” means $20,000,000.  “Letter of Credit Usage” means, as of any date of determination, the sum of (a) the  aggregate undrawn amount of all outstanding Letters of Credit, plus (b) the aggregate amount of  outstanding reimbursement obligations with respect to Letters of Credit which remain unreimbursed or  which have not been paid through a Revolving Loan.    “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge,  deposit arrangement, encumbrance, easement, lien (statutory or other), security interest, or other security  arrangement and any other preference, priority, or preferential arrangement of any kind or nature  whatsoever, including any conditional sale contract or other title retention agreement, the interest of a  lessor under a Capital Lease and any synthetic or other financing lease having substantially the same  economic effect as any of the foregoing.  “Line Cap” means, as of any date of determination, the lesser of (a) the Maximum  Revolver Amount and (b) the Borrowing Base as of such date of determination.  “Liquidity” means, as of any date of determination, the amount equal to the sum of (i)  Excess Availability plus (ii) Qualified Cash, provided, that, in no event shall the amount of Qualified  Cash included in the foregoing exceed 10% of the Line Cap as of any date of determination.   “Loan” means any Revolving Loan, Swing Loan, Extraordinary Advance made (or to be  made) hereunder.  “Loan Account” has the meaning specified therefor in Section 2.9 of this Agreement.  “Loan Documents” means this Agreement, the Control Agreements, any Borrowing Base  Certificate, the Fee Letter, the Guaranty and Security Agreement, any Issuer Documents, the Letters of  Credit, the Loan Manager Side Letter, any note or notes executed by Borrowers in connection with this  Agreement and payable to any member of the Lender Group, and any other instrument or agreement  entered into, now or in the future, by any Loan Party or any of its Restricted Subsidiaries and any member  of the Lender Group in connection with this Agreement (but specifically excluding Bank Product  Agreements).  “Loan Manager Side Letter” means that certain letter agreement between the Borrowers  and Wells Fargo regarding the terms under which Wells Fargo will provide services to the Borrowers in  respect of Wells Fargo’s proprietary automated loan management program.  





 






   -29-      “Loan Party” means any Borrower or any Guarantor.  “Macquarie” means Macquarie Energy North America Trading, Inc. and its affiliates.  “Macquarie Independent Amount” means cash collateral posted by the Administrative  Borrowers with Macquarie, provided that the aggregate amount of such cash collateral paid by the  Borrowers to Macquarie shall not exceed the aggregate amount remitted or advanced by Macquarie to or  for the benefit of the Borrowers in accordance with the Supply and Offtake Arrangements.  “Margin Stock” as defined in Regulation U of the Board of Governors as in effect from  time to time.  “Master Services Agreement” means the Master Services Agreement, dated as of  November 18, 2021, by and between Administrative Borrower and Calumet Montana Refining, LLC, as  amended, restated, amended and restated, supplemented or otherwise modified from time to time.  “Material Adverse Effect” means (a) a material adverse effect in the business, operations,  results of operations, assets, liabilities or financial condition of the Loan Parties and their Restricted  Subsidiaries, taken as a whole, (b) a material impairment of the Loan Parties’ and their Restricted  Subsidiaries’ ability to perform their obligations under the Loan Documents to which they are parties or  of the Lender Group’s ability to enforce the Obligations or realize upon the Collateral (other than as a  result of as a result of an action taken or not taken that is solely in the control of Agent), or (c) a material  impairment of the enforceability or priority of Agent’s Liens with respect to all or a material portion of  the Collateral.  “Maturity Date” means November 2, 2027.   “Maximum Revolver Amount” means $90,000,000, decreased by the amount of  reductions in the Revolver Commitments made in accordance with Section 2.4(c) of this Agreement and  increased by the amount of any Increase made in accordance with Section 2.14 of this Agreement.  “Moody’s” has the meaning specified therefor in the definition of Cash Equivalents.  “Non-Consenting Lender” has the meaning specified therefor in Section 14.2(a) of this  Agreement.  “Non-Defaulting Lender” means each Lender other than a Defaulting Lender.  “Obligations” means (a) all loans (including the Revolving Loans (inclusive of  Extraordinary Advances and Swing Loans)), debts, principal, interest (including any interest that accrues  after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in  whole or in part as a claim in any such Insolvency Proceeding), reimbursement or indemnification  obligations with respect to Letters of Credit (irrespective of whether contingent), premiums, liabilities  (including all amounts charged to the Loan Account pursuant to this Agreement), obligations (including  indemnification obligations), fees (including the fees provided for in the Fee Letter), Lender Group  Expenses (including any fees or expenses that accrue after the commencement of an Insolvency  Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such  Insolvency Proceeding), guaranties, and all covenants and duties of any other kind and description owing  by any Loan Party arising out of, under, pursuant to, in connection with, or evidenced by this Agreement  





 






   -30-      or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct  or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including  all interest not paid when due and all other expenses or other amounts that any Loan Party is required to  pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents,  and (b) all Bank Product Obligations; provided that, anything to the contrary contained in the foregoing  notwithstanding, the Obligations shall exclude any Excluded Swap Obligation.  Without limiting the  generality of the foregoing, the Obligations of Borrowers under the Loan Documents include the  obligation to pay (i) the principal of the Revolving Loans, (ii) interest accrued on the Revolving Loans,  (iii) the amount necessary to reimburse Issuing Bank for amounts paid or payable pursuant to Letters of  Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, (v) Lender Group  Expenses, (vi) fees payable under this Agreement or any of the other Loan Documents, and (vii)  indemnities and other amounts payable by any Loan Party under any Loan Document.  Any reference in  this Agreement or in the Loan Documents to the Obligations shall include all or any portion thereof and  any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any  Insolvency Proceeding.  “OFAC” means The Office of Foreign Assets Control of the U.S. Department of the  Treasury.  “Originating Lender” has the meaning specified therefor in Section 13.1(e) of this  Agreement.  “Other Connection Taxes” means, with respect to any Lender or Participant, Taxes  imposed as a result of a present or former connection between such Lender or Participant and the  jurisdiction imposing such Tax (other than connections arising from such Lender or Participant 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, Letter of Credit or Loan Document).  “Other Taxes” means all present or future stamp, court, documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery,  performance, enforcement or registration of, from the receipt or perfection of a security interest under, or  otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes  imposed with respect to an assignment (other than an assignment at the request of a Loan Party).  “Overadvance” means, as of any date of determination, that the Revolver Usage is greater  than any of the limitations set forth in Section 2.1 or Section 2.11 of this Agreement.  “Parent” has the meaning specified therefor in the preamble to the Agreement.   “Participant” has the meaning specified therefor in Section 13.1(e) of this Agreement.  “Patent Security Agreement” has the meaning specified therefor in the Guaranty and  Security Agreement.  “Patriot Act” has the meaning specified therefor in Section 4.13 of this Agreement.  “Payment Conditions” means, at the time of determination with respect to a proposed  payment to fund a Specified Transaction, that:  





 






   -31-      (a) no Default or Event of Default then exists or would arise as a result of the  consummation of such Specified Transaction,   (b) either   (i) Excess Availability, (x) at all times during the 30 consecutive days  immediately preceding the date of such proposed payment and the consummation of such Specified  Transaction, calculated on a pro forma basis as if such proposed payment was made, and the Specified  Transaction was consummated, on the first day of such period, and (y) after giving effect to such  proposed payment and Specified Transaction, in each case, is not less than 17.50% of the Line Cap, or   (ii) both (A) the Fixed Charge Coverage Ratio of the Loan Parties and their  Restricted Subsidiaries is equal to or greater than 1.00:1.00 for the trailing 12 month period most recently  ended for which financial statements are required to have been delivered to Agent pursuant to Schedule  5.1 to this Agreement (calculated on a pro forma basis as if such proposed payment is a Fixed Charge  made on the last day of such 12 month period (it being understood that such proposed payment shall also  be a Fixed Charge made on the last day of such 12 month period for purposes of calculating the Fixed  Charge Coverage Ratio under this clause (ii) for any subsequent proposed payment to fund a Specified  Transaction)), and (B) Excess Availability, (x) at all times during the 30 consecutive days immediately  preceding the date of such proposed payment and the consummation of such Specified Transaction,  calculated on a pro forma basis as if such proposed payment was made, and the Specified Transaction  was consummated, on the first day of such period, and (y) after giving effect to such proposed payment  and Specified Transaction, in each case, is not less than 15.0% of the Line Cap, and  (c) Administrative Borrower has delivered a certificate to Agent certifying that all  conditions described in clauses (a), (b), and (c) above have been satisfied.   “Payment Recipient” has the meaning specified therefor in Section 17.16 of this  Agreement.  “Permitted Discretion” means a determination made in the exercise of reasonable (from  the perspective of a secured asset-based lender) business judgment.  “Permitted Dispositions” means:  (a) sales, abandonment, or other dispositions of Equipment that is substantially  worn, damaged, or obsolete or no longer used or useful in the ordinary course of business and leases or  subleases of Real Property not useful in the conduct of the business of the Loan Parties and their  Restricted Subsidiaries,  (b) sales of Inventory to buyers in the ordinary course of business (including, for the  avoidance of doubt, sales of Inventory pursuant to the Supply and Offtake Arrangements),  (c) the use or transfer of money or Cash Equivalents in a manner that is not  otherwise prohibited by the terms of this Agreement or the other Loan Documents,  (d) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and  other intellectual property rights in the ordinary course of business,  (e) the granting of Permitted Liens,  





 






   -32-      (f) the sale or discount, in each case without recourse, of accounts receivable (other  than Eligible Accounts) arising in the ordinary course of business, but only in connection with the  compromise or collection thereof,  (g) any involuntary loss, damage or destruction of property,  (h) any involuntary condemnation, seizure or taking, by exercise of the power of  eminent domain or otherwise, or confiscation or requisition of use of property,  (i) the consignment, leasing or subleasing of assets of any Loan Party or its  Restricted Subsidiaries in the ordinary course of business, and precautionary financing statement filings in  connection with (i) transactions constituting a true sale of inventory, (ii) bailment, storage or similar  arrangements in which a counterparty holds title to the assets that are the subject of such transaction, or  (iii) consignment agreements,   (j) the sale or issuance of Equity Interests (other than Disqualified Equity Interests)  of Parent or Administrative Borrower,  (k) (i) the lapse of registered patents, trademarks, copyrights and other intellectual  property of any Loan Party or any of its Restricted Subsidiaries to the extent not material to the conduct  of their business taken as a whole, or (ii) the abandonment of patents, trademarks, copyrights, or other  intellectual property rights in the ordinary course of business so long as (in each case under clauses (i) and  (ii)), (A) with respect to copyrights, such copyrights are not material to the conduct of the business of the  Loan Parties taken as a whole, and (B) such lapse is not materially adverse to the interests of the Lender  Group,  (l) the making of Restricted Payments that are expressly permitted to be made  pursuant to this Agreement,  (m) the making of Permitted Investments, including transfers of assets other than  Collateral by a Loan Party to a Loan Party thereof,  (n) so long as no Event of Default has occurred and is continuing or would  immediately result therefrom, transfers of assets (i) from any Loan Party or any of its Restricted  Subsidiaries to a Loan Party, and (ii) from any Restricted Subsidiary of any Loan Party that is not a Loan  Party to any other Restricted Subsidiary of any Loan Party,  (o) dispositions of Equipment or Real Property to the extent that (i) such property is  exchanged for credit against the purchase price of similar replacement property, or (ii) the proceeds of  such disposition are promptly applied within 365 days of such disposition to the purchase price of such  replacement property; provided, that to the extent the property being transferred constitutes Collateral,  such replacement property shall constitute Collateral, or  (p)  sales or dispositions of fixed assets (including intangible property related to such  fixed assets) not otherwise permitted in clauses (a) through (o) above so long as made at fair market value  and the aggregate fair market value of all assets disposed of in fiscal year (including the proposed  disposition) would not exceed $1,000,000.  “Permitted Holder” means Calumet Specialty Products Partners, L.P.  





 






   -33-      “Permitted Indebtedness” means:  (a) Indebtedness in respect of the Obligations,  (b) Indebtedness as of the Closing Date set forth on Schedule 4.14 to this Agreement  and any Refinancing Indebtedness in respect of such Indebtedness,  (c) [reserved],  (d) Indebtedness arising in connection with the endorsement of instruments or other  payment items for deposit,  (e) Indebtedness consisting of (i) unsecured guarantees incurred in the ordinary  course of business with respect to surety and appeal bonds, performance bonds, bid bonds, appeal bonds,  completion guarantee and similar obligations; (ii) unsecured guarantees arising with respect to customary  indemnification obligations to purchasers in connection with Permitted Dispositions; and (iii) unsecured  guarantees with respect to Indebtedness of any Loan Party or one of its Restricted Subsidiaries, to the  extent that the Person that is obligated under such guaranty could have incurred such underlying  Indebtedness,  (f) Indebtedness of a Restricted Subsidiary acquired pursuant to a business  acquisition otherwise permitted hereunder (or Indebtedness assumed by Loan Party pursuant to a business  acquisition otherwise permitted hereunder as a result of a merger or consolidation, or the acquisition of  property securing such Indebtedness), so long as such Indebtedness was not incurred in connection with,  or in anticipation or contemplation of, such business acquisition; provided that if any of such  Indebtedness matures prior to the Maturity Date and such Indebtedness has not been refinanced or  defeased (it being acknowledged hereby that the refinancing thereof is expressly permitted hereby) within  60 days prior to its maturity date, Agent may, in its discretion, establish a Reserve with respect to such  Indebtedness; and provided further that such Indebtedness shall be permitted only if (i) such Indebtedness  is incurred during the period from the Closing Date to the first anniversary of the Closing Date and the  total amount such Indebtedness incurred, together with the amount of Indebtedness incurred pursuant to  clause (r) below during such period, does not exceed $20,000,000, or (ii) for the most recent trailing 12  month period immediately preceding the date on which such additional Indebtedness is incurred or issued  for which financial statements have been delivered, (x) the Total Leverage Ratio of the Loan Parties and  their Restricted Subsidiaries would have been 3.75 to 1.0 or less and (y) the Secured Leverage Ratio of  the Loan Parties and their Restricted Subsidiaries would have been 2.00 to 1.0 or less, in each case  determined on a pro forma basis as if the additional Indebtedness had been incurred or issued and the  proceeds thereof applied as of the first day of such 12 month period;  (g) Indebtedness incurred in the ordinary course of business under performance,  surety, statutory, or appeal bonds,  (h) Indebtedness owed to any Person providing property, casualty, liability, or other  insurance to any Loan Party or any of its Restricted Subsidiaries, so long as the amount of such  Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the  cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is  outstanding only during such year,  





 






   -34-      (i) the incurrence by any Loan Party or its Restricted Subsidiaries of Indebtedness  under Hedge Agreements that is incurred for the bona fide purpose of hedging the interest rate,  commodity, or foreign currency risks associated with such Loan Party’s or such Restricted Subsidiary’s  operations and not for speculative purposes,  (j) Indebtedness incurred in the ordinary course of business in respect of credit  cards, credit card processing services, debit cards, stored value cards, commercial cards (including so- called “purchase cards”, “procurement cards” or “p-cards”), or Cash Management Services,  (k) unsecured Indebtedness of any Loan Party owing to employees, former  employees, former officers, directors, or former directors (or any spouses, ex-spouses, or estates of any of  the foregoing) incurred in connection with the repurchase or redemption by such Loan Party of the Equity  Interests of Parent” that has been issued to such Persons, so long as (i) no Default or Event of Default has  occurred and is continuing or would result from the incurrence of such Indebtedness, (ii) the aggregate  amount of all such Indebtedness outstanding at any one time does not exceed $2,000,000, and (iii) such  Indebtedness is subordinated in right of payment to the Obligations on terms and conditions reasonably  acceptable to Agent,  (l) Permitted Purchase Money Indebtedness and Indebtedness arising out of any Sale  Leaseback, including, for the avoidance of doubt, the Sale Leaseback Outstanding Obligations, in an  aggregate amount outstanding not to exceed $400,000,000 at any time and any Refinancing Indebtedness  in respect of such Indebtedness,  (m) Indebtedness comprising Permitted Investments,  (n) unsecured Indebtedness incurred in respect of netting services, overdraft  protection, and other like services, in each case, incurred in the ordinary course of business,  (o) Indebtedness incurred in connection with inventory structuring transactions in  form and substance satisfactory to Agent in its Permitted Discretion (and to the extent constituting  Indebtedness, obligations arising under Supply and Offtake Arrangements being deemed satisfactory  hereby) of which the subject inventory will not exceed 750,000 barrels at any time,   (p) customary obligations for indemnity claims and purchase price adjustments  arising in connection with an agreement for the purchase or sale of a business unit,  (q) accrual of interest, accretion or amortization of original issue discount, or the  payment of interest in kind, in each case, on Indebtedness that otherwise constitutes Permitted  Indebtedness,   (r) other unsecured Indebtedness or unsecured Subordinated Indebtedness, provided,  that (i) the maturity date for such Indebtedness shall occur no earlier than the date six months after the  Maturity Date, (ii) the principal amount of such Indebtedness shall not amortize by more than 1% during  any twelve month period prior to the Maturity Date (excluding the effect of put rights, required tenders  for such Indebtedness or other repayments or prepayments required upon the occurrence of a contingency  (such as, by way of example and not by way of limitation, an event of default, the destruction of assets or  a change of control)), and (iii) (1) such Indebtedness is incurred during the period from the Closing Date  to the first anniversary of the Closing Date and the total amount such Indebtedness incurred, together with  the amount of Indebtedness incurred pursuant to clause (f) above during such period, does not exceed  





 






   -35-      $20,000,000, or (2) for the most recent trailing 12 month period immediately preceding the date on which  such additional Indebtedness is incurred or issued for which financial statements have been delivered, the  Total Leverage Ratio of the Loan Parties and their Restricted Subsidiaries would have been 3.75 to 1.0 or  less, determined on a pro forma basis as if the additional Indebtedness had been incurred or issued and the  proceeds thereof applied as of the first day of such 12 month period, together with Refining Indebtedness  in respect of such Indebtedness,   (s) Indebtedness incurred to finance the acquisition, design, engineering, installation  or construction cost of equipment to produce sustainable aviation fuel in an amount at any time  outstanding not to exceed $100,000,000 and Refinancing Indebtedness in respect of such Indebtedness,  provided, that (i) the maturity date for such Indebtedness shall occur no earlier than the date six months  after the Maturity Date and (ii) the principal amount of such Indebtedness shall not amortize by more than  2% during any twelve month period prior to the Maturity Date (excluding the effect of put rights, required  tenders for such Indebtedness or other repayments or prepayments required upon the occurrence of a  contingency (such as, by way of example and not by way of limitation, an event of default, the destruction  of assets or a change of control)), and  (t) other Indebtedness, provided, that (i) the maturity date for such Indebtedness  shall occur no earlier than the date six months after the Maturity Date, (ii) the principal amount of such  Indebtedness shall not amortize by more than 1% during any twelve month period prior to the Maturity  Date (excluding the effect of put rights, required tenders for such Indebtedness or other repayments or  prepayments required upon the occurrence of a contingency (such as, by way of example and not by way  of limitation, an event of default, the destruction of assets or a change of control)), and (iii) such  indebtedness shall be permitted only if (1) such Indebtedness is incurred during the period from the  Closing Date to the first anniversary of the Closing Date, the total amount such Indebtedness incurred,  together with the amount of Indebtedness incurred pursuant to clauses (f) and (r) above during such  period, does not exceed $100,000,000, and the proceeds are used only for the payment or reimbursement  of capital expenditures, or purchase of other assets useful in the business, or (2) for the most recent  trailing 12 month period immediately preceding the date on which such additional Indebtedness is  incurred or issued for which financial statements have been delivered, (x) the Total Leverage Ratio of the  Loan Parties and the Restricted Subsidiaries would have been 3.75 to 1.0 or less and (y) the Secured  Leverage Ratio of the Loan Parties and the Restricted Subsidiaries would have been 2.00 to 1.0, in each  case determined on a pro forma basis as if the additional Indebtedness had been incurred or issued and the  proceeds thereof applied as of the first day of such 12 month period, together with Refining Indebtedness  in respect of such Indebtedness.  “Permitted Intercompany Advances” means loans made by (a) a Loan Party to another  Loan Party, (b) a Restricted Subsidiary of Borrower that is not a Loan Party to another Restricted  Subsidiary of Borrower that is not a Loan Party, and (c) a Restricted Subsidiary of Borrower that is not a  Loan Party to a Loan Party, so long as the parties thereto are party to an intercompany subordination  agreement in form and substance reasonably satisfactory to Agent.   “Permitted Investments” means:   (a) Investments in cash and Cash Equivalents,  (b) Investments in negotiable instruments deposited or to be deposited for collection  in the ordinary course of business,  





 






   -36-      (c) Advances, deposits and trade credit made or extended in connection with  purchases of goods or services in the ordinary course of business,  (d) Investments received in settlement of amounts due to any Loan Party or any of its  Restricted Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of  its Restricted Subsidiaries as a result of Insolvency Proceedings involving an account debtor or upon the  foreclosure or enforcement of any Lien in favor of a Loan Party or its Restricted Subsidiaries,  (e) Investments (i) owned by any Loan Party or any of its Restricted Subsidiaries on  the Closing Date and set forth on Schedule P-1 to this Agreement, (ii) consisting of advances or loans to  directors, managers, officers, employees, agents, customers or suppliers in an aggregate principal amount  not to exceed $2,000,000 at any time outstanding, and (iii) made by any Loan Party in any other Loan  Party,  (f) guarantees permitted under the definition of Permitted Indebtedness,  (g) Permitted Intercompany Advances,  (h) Equity Interests or other securities acquired in connection with the satisfaction or  enforcement of Indebtedness or claims due or owing to a Loan Party or its Restricted Subsidiaries (in  bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security  for any such Indebtedness or claims,  (i) deposits of cash made in the ordinary course of business to secure performance  of operating leases,  (j) non-cash loans and advances to employees, officers, and directors of a Loan  Party or any of its Restricted Subsidiaries for the purpose of purchasing Equity Interests in Administrative  Borrower or Parent so long as the proceeds of such loans are used in their entirety to purchase such  Equity Interests in Administrative Borrower,  (k) Investments resulting from entering into (i) Bank Product Agreements, (ii) to the  extent constituting Investments, Hedging Agreements otherwise permitted to be incurred pursuant hereto  or (iii) agreements relative to obligations permitted under clause (j) of the definition of Permitted  Indebtedness,  (l) Investments in the form of capital contributions and the acquisition of Equity  Interests made by any Loan Party in any other Loan Party (other than capital contributions to or the  acquisition of Equity Interests of Parent),  (m) equity Investments by any Loan Party in any Subsidiary of such Loan Party  which is required by law to maintain a minimum net capital requirement or as may be otherwise required  by applicable law,   (n) so long as no Event of Default has occurred and is continuing or would result  therefrom, any other Investments in an aggregate amount not to exceed $5,000,000 during the term of this  Agreement,   





 






   -37-      (o) Investments consisting of Equity Interests arising from customary settlements of  indemnity claims and purchase price adjustments in connection with an agreement for the purchase or  sale of a business unit in a transaction permitted hereunder, and  (p) other Acquisitions or Investments (including Investments in Unrestricted  Subsidiaries) if the Payment Conditions are satisfied.  “Permitted Liens” means:  (a) Liens granted to, or for the benefit of, Agent to secure the Obligations,  (b) Liens for unpaid Taxes, assessments, or other governmental charges or levies that  either (i) are not yet delinquent, or (ii) are the subject of Permitted Protests,  (c) judgment Liens arising solely as a result of the existence of judgments, orders, or  awards that do not constitute an Event of Default under Section 8.3 of this Agreement,  (d) Liens set forth on Schedule P-2 to this Agreement; provided, that to qualify as a  Permitted Lien, any such Lien described on Schedule P-2 to this Agreement shall only secure the  Indebtedness that it secures on the Closing Date and any Refinancing Indebtedness in respect thereof,  (e) the interests of lessors under operating leases (including precautionary Uniform  Commercial Code filings in favor of a lessor or sublessor) and non-exclusive licensors under license  agreements, and leases or subleases to other Persons to the extent that the disposition is permitted hereby,  (f) purchase money Liens on fixed assets or the interests of lessors under Capital  Leases to the extent that such Liens or interests secure Permitted Purchase Money Indebtedness and so  long as (i) such Lien attaches only to the fixed asset purchased or acquired and the proceeds thereof, and  (ii) such Lien only secures the Indebtedness that was incurred to acquire the fixed asset purchased or  acquired or any Refinancing Indebtedness in respect thereof,  (g) Liens arising by operation of law in favor of warehousemen, landlords, carriers,  mechanics, materialmen, laborers, or suppliers, and other similar Liens imposed by law or pursuant to  customary reservations or retentions of title (including for the avoidance of doubt Liens of sellers of  goods to Loan Parties arising under Article 2 of the Uniform Commercial Code or similar provisions of  applicable law in the ordinary course of business, covering only the goods sold and securing only the  unpaid purchase price for such goods and related expenses), incurred in the ordinary course of business  and not in connection with the borrowing of money, and which Liens either (i) are for sums not yet  delinquent, or (ii) are the subject of Permitted Protests,  (h) Liens on amounts deposited to secure any Borrower’s and its Restricted  Subsidiaries’ obligations in connection with worker’s compensation, unemployment insurance or other  forms of governmental insurance or benefits,  (i) Liens on amounts deposited to secure any Borrower’s and its Restricted  Subsidiaries’ obligations in connection with the making or entering into of bids, tenders, contracts,  statutory obligations or leases in the ordinary course of business and not in connection with the borrowing  of money,  





 






   -38-      (j) Liens on amounts deposited to secure any Borrower’s and its Restricted  Subsidiaries’ reimbursement obligations with respect to surety or appeal bonds obtained in the ordinary  course of business,  (k) with respect to any Real Property, easements, rights of way, and zoning  restrictions that do not materially interfere with or impair the use or operation thereof,  (l) non-exclusive licenses of patents, trademarks, copyrights, and other intellectual  property rights in the ordinary course of business,  (m) Liens that are replacements of Permitted Liens to the extent that the original  Indebtedness is the subject of permitted Refinancing Indebtedness and so long as the replacement Liens  only encumber those assets that secured the original Indebtedness,  (n) rights of setoff or bankers’ liens upon deposits of funds in favor of banks or other  depository institutions, solely to the extent incurred in connection with the maintenance of such Deposit  Accounts in the ordinary course of business,  (o) Liens granted in the ordinary course of business on the unearned portion of  insurance premiums securing the financing of insurance premiums to the extent the financing is permitted  under the definition of Permitted Indebtedness,  (p) Liens in favor of customs and revenue authorities arising as a matter of law to  secure payment of customs duties in connection with the importation of goods,  (q) Liens securing inventory structuring transactions permitted by clause (o) of the  definition of Permitted Indebtedness, subject at all times to an intercreditor agreement in form and  substance satisfactory to Agent in its discretion (which intercreditor agreement shall provide that, among  other things, Agent shall retain a first priority Lien on all Collateral),  (r) Liens securing bona fide hedging of interest rate, commodity, or foreign currency  risks associated with a Loan Party’s or its Restricted Subsidiary’s operations and not for speculative  purposes permitted under clause (i) of the definition of Permitted Indebtedness; provided that (other than  Obligations under Hedge Agreements which constitute Bank Products) (i) such Liens do not at any time  attach to or encumber Property constituting Collateral, other than cash or Cash Equivalents not exceeding  $1,000,000 in the aggregate amount at any time (after deducting the available amount of Letters of Credit  posted in support of such Hedge Agreements) so long as such cash and cash collateral is not comingled  with any other Collateral and not a part of the Qualified Cash, and (ii) if reasonably requested by Agent  following notice of the intention of a Loan Party or a Restricted Subsidiary of a Loan Party to grant such a  Lien, the counterparty to such Hedge Agreement shall have entered into an intercreditor agreement with  Agent, in form and substance reasonably satisfactory to Agent, provided that no such intercreditor  agreement shall be required for Liens on cash collateral permitted hereunder,  (s) The Macquarie Independent Amount,  (t) judgment liens (other than for the payment of taxes, assessments or other  governmental charges) securing judgments and other proceedings not constituting an Event of Default,  





 






   -39-      (u) rights of set-off, transaction netting or bankers’ liens, (i) upon deposits of cash in  favor of banks or other depository institutions, solely to the extent incurred in connection with the  maintenance of such deposit accounts in the ordinary course of business, and (ii) including Liens of a  collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of  collection,   (v) Liens on property acquired pursuant to a business acquisition permitted  hereunder, or on the property of a Subsidiary in existence at the time such Subsidiary is acquired pursuant  to a business acquisition permitted hereunder and any renewals or extensions thereof, provided that (i) the  property (or, in the case of fungible property, any replacement thereof) covered thereby is not changed,  (ii) the amount secured or benefited thereby is not increased (other than for reasonable and customary  transaction costs incurred in connection with such renewal or extension), and (iii) the direct or any  contingent obligor with respect thereto is not changed; provided that (A) any Indebtedness that is secured  by such Liens is otherwise permitted to exist hereunder, (B) such Liens existed at the time such Person  became a Subsidiary and were not created in connection with, or in contemplation of, such business  acquisition, (C) any such Liens either (1) do not attach to or encumber any property constituting  Collateral or (2) are subordinate to Agent’s lien pursuant to an intercreditor agreement in form and  substance satisfactory to Agent in its discretion (which intercreditor agreement shall provide that, among  other things, Agent shall retain a first priority Lien on all Collateral) and (D) the amount of Indebtedness  secured thereby is not increased;  (w) Liens on equipment and proceeds thereof securing Indebtedness permitted to be  incurred pursuant to clause (s) of the definition of Permitted Indebtedness;  (x) Liens on property not constituting Collateral securing Indebtedness permitted to  be incurred pursuant to clause (t) of the definition of Permitted Indebtedness; and  (y) other Liens which do not secure Indebtedness for borrowed money or letters of  credit and as to which the aggregate amount of the obligations secured thereby does not exceed  $5,000,000.  “Permitted Protest” means the right of any Loan Party or any of its Subsidiaries to protest  any Lien (other than any Lien that secures the Obligations), Taxes (other than payroll taxes), or rental  payment; provided, that (a) a reserve with respect to such obligation is established on such Loan Party’s  or its Subsidiaries’ books and records in such amount as is required under GAAP, (b) any such protest is  instituted promptly and prosecuted diligently by such Loan Party or its Subsidiary, as applicable, in good  faith, and (c) Agent is satisfied that, while any such protest is pending, there will be no impairment of the  enforceability, validity, or priority of any of Agent’s Liens.  “Permitted Purchase Money Indebtedness” means Indebtedness (other than the  Obligations, but including Capitalized Lease Obligations), incurred after the Closing Date and at the time  of, or within 90 days after, the acquisition or completion of any fixed assets for the purpose of financing  all or any part of the acquisition, design, engineering, installation or construction cost thereof plus  premiums and reasonable fees, costs and expenses related to such financing.  “Person” means natural persons, corporations, limited liability companies, limited  partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land trusts, business  trusts, or other organizations, irrespective of whether they are legal entities, and governments and  agencies and political subdivisions thereof.  





 






   -40-      “Platform” has the meaning specified therefor in Section 17.9(c) of this Agreement.  “Post-Increase Revolver Lenders” has the meaning specified therefor in Section 2.14 of  this Agreement.  “Pre-Increase Revolver Lenders” has the meaning specified therefor in Section 2.14 of  this Agreement.  “Pro Rata Share” means, as of any date of determination:  (a) with respect to a Lender’s obligation to make all or a portion of the Revolving  Loans, with respect to such Lender’s right to receive payments of interest, fees, and principal with respect  to the Revolving Loans, and with respect to all other computations and other matters related to the  Revolver Commitments or the Revolving Loans, the percentage obtained by dividing (i) the Revolving  Loan Exposure of such Lender, by (ii) the aggregate Revolving Loan Exposure of all Lenders,  (b) with respect to a Lender’s obligation to participate in the Letters of Credit, with  respect to such Lender’s obligation to reimburse Issuing Bank, and with respect to such Lender’s right to  receive payments of Letter of Credit Fees, and with respect to all other computations and other matters  related to the Letters of Credit, the percentage obtained by dividing (i) the Revolving Loan Exposure of  such Lender, by (ii) the aggregate Revolving Loan Exposure of all Lenders; provided, that if all of the  Revolving Loans have been repaid in full and all Revolver Commitments have been terminated, but  Letters of Credit remain outstanding, Pro Rata Share under this clause shall be the percentage obtained by  dividing (A) the Letter of Credit Exposure of such Lender, by (B) the Letter of Credit Exposure of all  Lenders, and  (c) with respect to all other matters and for all other matters as to a particular Lender  (including the indemnification obligations arising under Section 15.7 of this Agreement), the percentage  obtained by dividing (i) the Revolving Loan Exposure of such Lender, by (ii) the aggregate Revolving  Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by  assignments permitted pursuant to Section 13.1; provided, that if all of the Loans have been repaid in full  and all Commitments have been terminated, Pro Rata Share under this clause shall be the percentage  obtained by dividing (A) the Letter of Credit Exposure of such Lender, by (B) the Letter of Credit  Exposure of all Lenders.  “Projections” means Borrowers’ forecasted (a) balance sheets, (b) profit and loss  statements, and (c) cash flow statements, all prepared on a basis consistent with Borrowers’ historical  financial statements, together with appropriate supporting details and a statement of underlying  assumptions.  “Protective Advances” has the meaning specified therefor in Section 2.3(d)(i) of this  Agreement.  “Public Lender” has the meaning specified therefor in Section 17.9(c) of this Agreement.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall  be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).   





 






   -41-      “QFC Credit Support” has the meaning specified therefor in Section 17.15 of this  Agreement.  “Qualified Cash” means, as of any date of determination, the amount of unrestricted cash  and Cash Equivalents of the Loan Parties and their Restricted Subsidiaries that is in Deposit Accounts or  in Securities Accounts, or any combination thereof, which Deposit Account or Securities Account is  maintained with Wells Fargo and, from and after the 30th day following the Closing Date, which Deposit  Account or Securities Account is the subject of a Control Agreement and is maintained by a branch office  of the bank or securities intermediary located within the United States.  “Qualified Equity Interests” means and refers to any Equity Interests issued by Parent or  Administrative Borrower (and not by one or more of its Subsidiaries) that is not a Disqualified Equity  Interest.  “Real Property” means any estates or interests in real property now owned or hereafter  acquired by any Loan Party or one of its Restricted Subsidiaries and the improvements thereto.  “Receivable Reserves” means, as of any date of determination, those reserves that Agent  deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(c), to establish and  maintain with respect to the Eligible Accounts or the Maximum Revolver Amount.  “Record” means information that is inscribed on a tangible medium or that is stored in an  electronic or other medium and is retrievable in perceivable form.  “Refinancing Indebtedness” means refinancings, renewals, replacements or extensions of  Indebtedness so long as:  (a) such refinancings, renewals, replacements or extensions do not result in an  increase in the principal amount of the Indebtedness so refinanced, renewed, or extended, other than by  the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by  the amount of unfunded commitments with respect thereto,  (b) such refinancings, renewals, replacements or extensions do not result in a  shortening of the final stated maturity or the average weighted maturity (measured as of the refinancing,  renewal, or extension) of the Indebtedness so refinanced, renewed, replaced or extended, nor are they on  terms or conditions (other than pricing and yield in respect of Indebtedness that does not constitute Sale  Leaseback Outstanding Obligations) that, taken as a whole, are or could reasonably be expected to be  materially adverse to the interests of the Lenders,  (c) if the Indebtedness that is refinanced, renewed, replaced or extended was  subordinated in right of payment to the Obligations, then the terms and conditions of the refinancing,  renewal, or extension must include subordination terms and conditions that are at least as favorable to the  Lender Group as those that were applicable to the refinanced, renewed, or extended Indebtedness,  (d) if the Indebtedness that is refinanced, renewed, replaced or extended was  unsecured, such refinancing, renewal or extension shall be unsecured, and  (e) if the Indebtedness that is refinanced, renewed, replaced or extended was secured  (i) such refinancing, renewal, or extension shall be secured by substantially the same or less collateral as  





 






   -42-      secured such refinanced, renewed or extended Indebtedness on terms no less favorable to Agent or the  Lender Group and (ii) the Liens securing such refinancing, renewal or extension shall not have a priority  more senior than the Liens securing such Indebtedness that is refinanced, renewed or extended.  “Related Fund” means any Person (other than a natural person) that is engaged in  making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary  course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an  entity or an Affiliate of an entity that administers, advises or manages a Lender.  “Relevant Governmental Body” means the Board of Governors or the Federal Reserve  Bank of New York, or a committee officially endorsed or convened by the Board of Governors or the  Federal Reserve Bank of New York, or any successor thereto.  “Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain,  treat, monitor, assess, evaluate, or in any way address the harm or potential harm of Hazardous Materials  in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of  Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare  or the indoor or outdoor environment, (c) restore or reclaim natural resources or the environment, (d)  perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities,  or (e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws.  “Replacement Lender” has the meaning specified therefor in Section 2.13(b) of this  Agreement.  “Report” has the meaning specified therefor in Section 15.16 of this Agreement.  “Required Lenders” means, at any time, Lenders having or holding more than 50% of the  aggregate Revolving Loan Exposure of all Lenders; provided, that (i) the Revolving Loan Exposure of  any Defaulting Lender shall be disregarded in the determination of the Required Lenders, and (ii) at any  time there are two or more Lenders (who are not Affiliates of one another or Defaulting Lenders),  “Required Lenders” must include at least two Lenders (who are not Affiliates of one another).  “Reserves” means, as of any date of determination, Receivables Reserves, Bank Product  Reserves and those other reserves that Agent deems necessary or appropriate, in its Permitted Discretion  and subject to Section 2.1(c), to establish and maintain with respect to the Borrowing Base or the  Maximum Revolver Amount (including reserves with respect to (a) sums that any Loan Party or its  Restricted Subsidiaries are required to pay under any Section of this Agreement or any other Loan  Document (such as Taxes (including excise taxes), assessments, insurance premiums, or, in the case of  leased assets, rents or other amounts payable under such leases) and has failed to pay, and (b) amounts  owing by any Loan Party or its Restricted Subsidiaries to any Person to the extent secured by a Lien on,  or trust over, any of the Collateral (other than a Permitted Lien), which Lien or trust, in the Permitted  Discretion of Agent likely would have a priority superior to Agent’s Liens (such as Liens or trusts in  favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or  trusts for ad valorem, excise, sales, or other Taxes where given priority under applicable law) in and to  such item of the Collateral) with respect to the Borrowing Base or the Maximum Revolver Amount.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  





 






   -43-      “Restricted Payment” means (a) any payment of any dividend or the making of any other  payment or distribution, directly or indirectly, on account of Equity Interests issued by Administrative  Borrower (including any payment in connection with any merger or consolidation involving  Administrative Borrower) or to the direct or indirect holders of Equity Interests issued by Administrative  Borrower in their capacity as such (other than dividends or distributions payable in Qualified Equity  Interests issued by Administrative Borrower), or (b) any purchase, redemption, making of any sinking  fund or similar payment, or other acquisition or retirement for value (including in connection with any  merger or consolidation involving Administrative Borrower) any Equity Interests issued by  Administrative Borrower, or (c) any making of any payment to retire, or to obtain the surrender of, any  outstanding warrants, options, or other rights to acquire Equity Interests Administrative Borrower now or  hereafter outstanding.  “Restricted Subsidiary” means any Subsidiary that is not an Unrestricted Subsidiary.  “Revolver Commitment” means, with respect to each Revolving Lender, its Revolver  Commitment, and, with respect to all Revolving Lenders, their Revolver Commitments, in each case as  such Dollar amounts are set forth beside such Revolving Lender’s name under the applicable heading on  Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such Revolving  Lender became a Revolving Lender under this Agreement, as such amounts may be reduced or increased  from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of this  Agreement, and as such amounts may be decreased by the amount of reductions in the Revolver  Commitments made in accordance with Section 2.4(c) hereof or increased in accordance with Section  2.14 hereof.  “Revolver Usage” means, as of any date of determination, the sum of (a) the amount of  outstanding Revolving Loans (inclusive of Swing Loans and Protective Advances), plus (b) the amount of  the Letter of Credit Usage.  “Revolving Lender” means a Lender that has a Revolving Loan Exposure or Letter of  Credit Exposure.  “Revolving Loan Exposure” means, with respect to any Revolving Lender, as of any date  of determination (a) prior to the termination of the Revolver Commitments, the amount of such Lender’s  Revolver Commitment, and (b) after the termination of the Revolver Commitments, the aggregate  outstanding principal amount of the Revolving Loans of such Lender.  “Revolving Loans” has the meaning specified therefor in Section 2.1(a) of this  Agreement.  “Sale Leaseback” means any transaction or series of related transactions pursuant to  which Parent or any Borrower (a) sells, transfers or otherwise disposes of any property, real or personal,  whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases  such property or other property that it intends to use for substantially the same purpose or purposes as the  property being sold, transferred or disposed of.   “Sale Leaseback Outstanding Obligations” means all Indebtedness, liabilities and  obligations arising under (i) the Master Lease Agreement dated as of December 31, 2021,  by and  between Stonebriar Commercial Finance LLC, a Delaware limited liability company (“Stonebriar”), and  its assignees, and Borrower, (ii) any equipment schedule or interim funding agreement executed in  





 






   -44-      connection therewith as contemplated therein including, for the avoidance of doubt, (a) the Interim  Funding Agreement dated as of December 31, 2021, between Stonebriar and Borrower, and (b)  Equipment Schedule No. 2 dated as of August 5, 2022, between Stonebriar and Borrower, and (iii) the  Interim Funding Agreement dated as of August 5, 2022, between Borrower and Stonebriar.   “Sanctioned Entity” means (a) a country or territory or a government of a country or  territory, (b) an agency of the government of a country or territory, (c) an organization directly or  indirectly controlled by a country or territory or its government, or (d) a Person resident in or determined  to be resident in a country or territory, in each case of clauses (a) through (d) that is a target of  comprehensive country Sanctions, including a target of any country sanctions program administered and  enforced by OFAC.  “Sanctioned Person” means, at any time (a) any Person named on the list of Specially  Designated Nationals and Blocked Persons maintained by OFAC, OFAC’s consolidated Non-SDN list or  any other Sanctions-related list maintained by any Governmental Authority, (b) a Person or legal entity  that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d)  any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on  behalf of any such Person or Persons described in clauses (a) through (c) above.  “Sanctions” means individually and collectively, respectively, any and all economic  sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes  anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed,  administered or enforced from time to time by:  (a) the United States of America, including those  administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any  existing or future executive order, (b) the United Nations Security Council, (c) the European Union or any  European Union member state, (d) Her Majesty’s Treasury of the United Kingdom, or (d) any other  Governmental Authority with jurisdiction over any member of any Loan Party or any of their respective  Subsidiaries.     “S&P” has the meaning specified therefor in the definition of Cash Equivalents.  “SEC” means the United States Securities and Exchange Commission and any successor  thereto.  “Secured Leverage Ratio” means, as of any date of determination the result of (a) the  amount Consolidated Secured Indebtedness of the Loan Parties and their Restricted Subsidiaries as of  such date, to (b) the EBITDA of the Loan Parties and their Restricted Subsidiaries for the most recent 12  month period for which financial statements have been delivered.       “Securities Account” means a securities account (as that term is defined in the Code).  “Securities Act” means the Securities Act of 1933, as amended from time to time, and  any successor statute.  “Settlement” has the meaning specified therefor in Section 2.3(e)(i) of this Agreement.  “Settlement Date” has the meaning specified therefor in Section 2.3(e)(i) of this  Agreement.  





 






   -45-      “SOFR” means a rate equal to the secured overnight financing rate as administered by the  SOFR Administrator.  “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor  administrator of the secured overnight financing rate).  “SOFR Loan” means each portion of a Revolving Loan that bears interest at a rate  determined by reference to Daily Simple SOFR.  “Solvent” means, with respect to any Person as of any date of determination, that (a) at  fair valuations, the sum of such Person’s debts (including contingent liabilities) is less than all of such  Person’s assets, (b) such Person is not engaged or about to engage in a business or transaction for which  the remaining assets of such Person are unreasonably small in relation to the business or transaction or for  which the property remaining with such Person is an unreasonably small capital, (c) such Person has not  incurred and does not intend to incur, or reasonably believe that it will incur, debts beyond its ability to  pay such debts as they become due (whether at maturity or otherwise), and (d) such Person is “solvent” or  not “insolvent”, as applicable within the meaning given those terms and similar terms under applicable  laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of any  contingent liability at any time shall be computed as the amount that, in light of all of the facts and  circumstances existing at such time, represents the amount that can reasonably be expected to become an  actual or matured liability.   “Specified Customers” means the customers of Borrower set forth on Schedule A-3  attached hereto, together with Affiliates of such customers to the extent such Affiliates’ obligations to  Borrower are guaranteed by customers of Borrower set forth on Schedule A-3 attached hereto, as such  schedule may be updated from time to time at Borrower’s request and in Agent’s sole discretion.  “Specified Transaction” means, any disposition, Investment, prepayment of Indebtedness  or Restricted Payment (or declaration of any prepayment or Restricted Payment).  “Standard Letter of Credit Practice” means, for Issuing Bank, any domestic or foreign  law or letter of credit practices applicable in the city in which Issuing Bank issued the applicable Letter of  Credit or, for its branch or correspondent, such laws and practices applicable in the city in which it has  advised, confirmed or negotiated such Letter of Credit, as the case may be, in each case, (a) which letter  of credit practices are of banks that regularly issue letters of credit in the particular city, and (b) which  laws or letter of credit practices are required or permitted under ISP or UCP, as chosen in the applicable  Letter of Credit.  “Subject Holder” has the meaning specified therefor in Section 2.4(e)(v) of this  Agreement.  “Subordinated Indebtedness” means any Indebtedness of any Loan Party or its Restricted  Subsidiaries incurred from time to time that is subordinated in right of payment to the Obligations and is  subject to a Subordination Agreement or contains terms and conditions of subordination that are  acceptable to Agent.   “Subordination Agreement” means a subordination agreement, in form and substance  acceptable to Agent, duly executed by the holder of any Indebtedness.   





 






   -46-      “Subsidiary” of a Person means a corporation, partnership, limited liability company, or  other entity in which that Person directly or indirectly owns or controls the Equity Interests having  ordinary voting power to elect a majority of the Board of Directors of such corporation, partnership,  limited liability company, or other entity.  “Supermajority Lenders” means, at any time, Revolving Lenders having or holding more  than 66 2/3% of the aggregate Revolving Loan Exposure of all Revolving Lenders; provided, that (i) the  Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the  Supermajority Lenders, and (ii) at any time there are two or more Revolving Lenders (who are not  Affiliates of one another or Defaulting Lenders), “Supermajority Lenders” must include at least two  Revolving Lenders (who are not Affiliates of one another or Defaulting Lenders).  “Supply and Offtake Arrangements” means the contractual arrangements between any  one or more Loan Parties on the one hand and Macquarie Energy North America Trading, Inc. or any of  its affiliates on the other hand.    “Supported QFC” has the meaning specified therefor in Section 17.15 of this Agreement.  “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.   “Swing Lender” means Wells Fargo or any other Lender that, at the request of Borrowers  and with the consent of Agent agrees, in such Lender’s sole discretion, to become the Swing Lender  under Section 2.3(b) of this Agreement.  “Swing Loan” has the meaning specified therefor in Section 2.3(b) of this Agreement.  “Swing Loan Exposure” means, as of any date of determination with respect to any  Lender, such Lender’s Pro Rata Share of the Swing Loans on such date.  “Tax Lender” has the meaning specified therefor in Section 14.2(a) of this Agreement.  “Taxes” means any taxes, levies, imposts, duties, deductions, withholdings (including  backup withholdings), assessments, fees, or other charges  now or hereafter imposed by any jurisdiction  or by any Governmental Authority, and all interest, penalties or similar liabilities with respect thereto.  “Total Leverage Ratio” means, as of any date of determination the result of (a) the  amount Consolidated Total Indebtedness of the Loan Parties and their Restricted Subsidiaries as of such  date, to (b) the EBITDA of the Loan Parties and their Restricted Subsidiaries for the most recent 12  month period for which financial statements have been delivered.       “UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice  for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 and  any version or revision thereof accepted by Issuing Bank for use.   “UK Financial Institution” means any BRRD Undertaking (as such term is defined under  the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from  time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain  





 






   -47-      credit institutions and investment firms, and certain affiliates of such credit institutions or investment  firms.   “UK Resolution Authority” means the Bank of England or any other public  administrative authority having responsibility for the resolution of any UK Financial Institution.   “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement  excluding the related Benchmark Replacement Adjustment.  “Unfinanced Capital Expenditures”  means Capital Expenditures (a) not financed with  the proceeds of any incurrence of Indebtedness (other than the incurrence of any Revolving Loans), the  proceeds of any sale or issuance of Equity Interests or equity contributions, the proceeds of any asset sale  (other than the sale of Inventory in the ordinary course of business) or any insurance proceeds, and (b)  that are not reimbursed by a third person (excluding any Loan Party or any of its Affiliates) in the period  such expenditures are made pursuant to a written agreement.  “United States” means the United States of America.  “Unrestricted Subsidiary” means any Subsidiary of a Loan Party that is not a Borrower  and is designated by Administrative Borrower after the Closing Date as an Unrestricted Subsidiary  hereunder by written notice to the Agent; provided, that, Administrative Borrower shall only be permitted  to so designate such Subsidiary as an Unrestricted Subsidiary if (a) on the date of and immediately after  giving effect to such designation, no Default or Event of Default has occurred and is continuing or would  result therefrom, (b) on the date of and immediately after giving effect to such designation, the Payment  Conditions shall have been satisfied, (c) transfers to, and Investments in, Unrestricted Subsidiaries are in  the form of cash and Cash Equivalents, (d) the fair market value of Investments in such Subsidiary will  constitute Permitted Investments at the time of its designation as an Unrestricted Subsidiary, (e) no Loan  Party shall have any liability for any Indebtedness or other obligations of any Unrestricted Subsidiary  except to the extent permitted as to any unaffiliated Person under the terms of this Agreement, (f) such  Subsidiary shall have been designated an “unrestricted subsidiary” (or otherwise not be subject to the  covenants) under any applicable Indebtedness permitted to be incurred hereby and shall not be designated  a Loan Party or “restricted subsidiary” for purposes of any other Indebtedness of the Loan Parties or any  Restricted Subsidiaries, and (g) Agent shall have received an officer’s certificate executed by a senior  financial officer of Administrative Borrower, certifying compliance with the requirements of preceding  clauses (a) through (f).  “Unused Line Fee” has the meaning specified therefor in Section 2.10(b) of this  Agreement.  “U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii)  a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association, or any  successor thereto, recommends that the fixed income departments of its members be closed for the entire  day for purposes of trading in United States government securities; provided, that for purposes of notice  requirements in Sections 2.3(a), 2.3(c) and 2.12(b), in each case, such day is also a Business Day.  “U.S. Person” means any Person that is a “United States person” as defined in  Section 7701(a)(30) of the IRC.   





 






   -48-      “U.S. Special Resolution Regimes” has the meaning specified therefor in Section 17.15  of this Agreement.  “Voidable Transfer” has the meaning specified therefor in Section 17.8 of this  Agreement.  “Wells Fargo” means Wells Fargo Bank, National Association, a national banking  association.   “Wells Letter Agreement” means the Acknowledgment Agreement, dated as of the date  hereof, by and between the Agent and Macquarie Energy North America Trading, Inc., and acknowledged  and agreed to by Montana.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time  under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion  powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,   any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify  or change the form of a liability of any UK Financial Institution or any contract or instrument under  which that liability arises, to convert all or part of that liability into shares, securities or obligations of that  person or any other person, to provide that any such contract or instrument is to have effect as if a right  had been exercised under it or to suspend any obligation in respect of that liability or any of the powers  under that Bail-In Legislation that are related to or ancillary to any of those powers.  1.2 Accounting Terms.  All accounting terms not specifically defined herein shall be  construed in accordance with GAAP; provided, that if Administrative Borrower notifies Agent that  Borrowers request an amendment to any provision hereof to eliminate the effect of any Accounting  Change occurring after the Closing Date or in the application thereof on the operation of such provision  (or if Agent notifies Administrative Borrower that the Required Lenders request an amendment to any  provision hereof for such purpose), regardless of whether any such notice is given before or after such  Accounting Change or in the application thereof, then Agent and Borrowers agree that they will negotiate  in good faith amendments to the provisions of this Agreement that are directly affected by such  Accounting Change with the intent of having the respective positions of the Lenders and Borrowers after  such Accounting Change conform as nearly as possible to their respective positions immediately before  such Accounting Change took effect and, until any such amendments have been agreed upon and agreed  to by the Required Lenders, the provisions in this Agreement shall be calculated as if no such Accounting  Change had occurred.  When used herein, the term “financial statements” shall include the notes and  schedules thereto.  Whenever the term  “Borrowers” is used in respect of a financial covenant or a related  definition, it shall be understood to mean the Loan Parties and their Subsidiaries on a consolidated basis,  unless the context clearly requires otherwise.  Notwithstanding anything to the contrary contained herein,  (a) all financial statements delivered hereunder shall be prepared, and all financial covenants contained  herein shall be calculated, without giving effect to any election under the Statement of Financial  Accounting Standards Board’s Accounting Standards Codification Topic 825 (or any similar accounting  principle) permitting a Person to value its financial liabilities or Indebtedness at the fair value thereof, and  (b) the term “unqualified opinion” as used herein to refer to opinions or reports provided by accountants  shall mean an opinion or report that is (i) unqualified, and (ii) does not include any explanation,  supplemental comment, or other comment concerning the ability of the applicable Person to continue as a  going concern or concerning the scope of the audit.     





 






   -49-      1.3 Code.  Any terms used in this Agreement that are defined in the Code shall be construed  and defined as set forth in the Code unless otherwise defined herein; provided, that to the extent that the  Code is used to define any term herein and such term is defined differently in different Articles of the  Code, the definition of such term contained in Article 9 of the Code shall govern.  1.4 Construction.  Unless the context of this Agreement or any other Loan Document clearly  requires otherwise, references to the plural include the singular, references to the singular include the  plural, the terms “includes” and  “including” are not limiting, and the term “or” has, except where  otherwise indicated, the inclusive meaning represented by the phrase “and/or.”  The words “hereof,”  “herein,” “hereby,” “hereunder,” and similar terms in this Agreement or any other Loan Document refer  to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular  provision of this Agreement or such other Loan Document, as the case may be.  Section, subsection,  clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified.  Any  reference in this Agreement or in any other Loan Document to any agreement, instrument, or document  shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements,  substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on  such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions,  joinders, and supplements set forth herein).  The words “asset” and “property” shall be construed to have  the same meaning and effect and to refer to any and all tangible and intangible assets and properties.  Any  reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the  Obligations shall mean (a) the payment or repayment in full in immediately available funds of (i) the  principal amount of, and interest accrued and unpaid with respect to, all outstanding Loans, together with  the payment of any premium applicable to the repayment of the Loans, (ii) all Lender Group Expenses  that have accrued and are unpaid regardless of whether demand has been made therefor, and (iii) all fees  or charges that have accrued hereunder or under any other Loan Document (including the Letter of Credit  Fee and the Unused Line Fee) and are unpaid, (b) in the case of contingent reimbursement obligations  with respect to Letters of Credit, providing Letter of Credit Collateralization, (c) in the case of obligations  with respect to Bank Products (other than Hedge Obligations), providing Bank Product Collateralization,  (d) the receipt by Agent of cash collateral in order to secure any other contingent Obligations for which a  claim or demand for payment has been made on or prior to such time or in respect of matters or  circumstances known to Agent or a Lender at such time that are reasonably expected to result in any loss,  cost, damage, or expense (including attorneys’ fees and legal expenses), such cash collateral to be in such  amount as Agent reasonably determines is appropriate to secure such contingent Obligations, (e) the  payment or repayment in full in immediately available funds of all other outstanding Obligations  (including the payment of any termination amount then applicable (or which would or could become  applicable as a result of the repayment of the other Obligations) under Hedge Agreements provided by  Hedge Providers) other than (i) unasserted contingent indemnification Obligations, (ii) any Bank Product  Obligations (other than Hedge Obligations) that, at such time, are allowed by the applicable Bank Product  Provider to remain outstanding without being required to be repaid or cash collateralized, and (iii) any  Hedge Obligations that, at such time, are allowed by the applicable Hedge Provider to remain outstanding  without being required to be repaid, and (f) the termination of all of the Commitments of the Lenders.   Any reference herein to any Person shall be construed to include such Person’s successors and assigns.   Any requirement of a writing contained herein or in any other Loan Document shall be satisfied by the  transmission of a Record.  Any officer a Loan Party executing any Loan Document or any certificate or  other document made or delivered pursuant hereto or thereto, so executes or certifies in his/her capacity  as an officer on behalf of the Parent or such Loan Party, as applicable, and not in any individual capacity.  1.5 Time References.  Unless the context of this Agreement or any other Loan Document  clearly requires otherwise, all references to time of day refer to Eastern standard time or Eastern daylight  





 






   -50-      saving time, as in effect in New York, New York on such day.  For purposes of the computation of a  period of time from a specified date to a later specified date, unless otherwise expressly provided, the  word “from” means “from and including” and the words “to” and “until” each means “to and including”;  provided, that with respect to a computation of fees or interest payable to Agent or any Lender, such  period shall in any event consist of at least one full day.  1.6 Schedules and Exhibits.  All of the schedules and exhibits attached to this Agreement  shall be deemed incorporated herein by reference.  1.7 Divisions.  For all purposes under the Loan Documents, in connection with any division  or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws):  (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability  of a different Person, then it shall be deemed to have been transferred from the original Person to the  subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to  have been organized on the first date of its existence by the holders of its Equity Interests at such time.   1.8 Rates.  Agent does not warrant or accept any responsibility for, and shall not have any  liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any  other matter related to Daily Simple SOFR, or any other Benchmark, any component definition thereof or  rates referred to in the definition thereof, or with respect to any alternative, successor or replacement rate  thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the  composition or characteristics of any such alternative, successor or replacement rate (including any  Benchmark Replacement), as it may or may not be adjusted pursuant to Section 2.12, will be similar to, or  produce the same value or economic equivalence of, or have the same volume or liquidity as, Daily  Simple SOFR, or any other Benchmark, prior to its discontinuance or unavailability, or (b) the effect,  implementation or composition of any Benchmark Conforming Changes.  Agent and its affiliates or other  related entities may engage in transactions that affect the calculation of Daily Simple SOFR, or any  alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant  adjustments thereto and such transactions may be adverse to a Borrower.  Agent may select information  sources or services in its reasonable discretion to ascertain Daily Simple SOFR, or any other Benchmark,  any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the  terms of this Agreement, and shall have no liability to any Borrower, any Lender or any other person or  entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential  damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity),  for any error or calculation of any such rate (or component thereof) provided by any such information  source or service.  1.9 Pro Forma Calculations; Fixed Charge Coverage Ratio Calculation.  For purposes of  calculations of the Fixed Charge Coverage Ratio, Total Leverage Ratio, and Secured Leverage Ratio  hereunder (including without limitation for purposes of the financial covenants set forth in Section 7),  (a) after consummation of any disposition of a business unit, division or Person permitted hereunder (i)  income statement items (whether positive or negative) and Capital Expenditures attributable to the  property disposed of shall be excluded and (ii) Indebtedness which is retired shall be excluded and  deemed to have been retired as of the first day of the applicable period and (b) after consummation of any  business Acquisition permitted hereunder (i) income statement items (whether positive or negative) and  Capital Expenditures attributable to the Person or property acquired shall, to the extent not otherwise  included in such income statement items for Loan Parties in accordance with GAAP or in accordance  with any defined terms set forth in Section 1.1, be included to the extent relating to any period applicable  in such calculations, (ii) to the extent not retired in connection with such Acquisition, Indebtedness of the  





 






   -51-      Person or Property acquired shall be deemed to have been incurred as of the first day of the applicable  period, and (iii) any pro forma expense or cost reductions in connection with such business acquisition  that have occurred or are reasonably expected to occur within the 12 months immediately following such  Acquisition or Investment shall be given pro forma effect, provided, that, (A) such expenses or cost  reductions (x) have been certified by the Chief Financial Officer of Administrative Borrower as having  been prepared in good faith based upon reasonable assumptions and (y) are based on reasonably detailed  written assumptions reasonably acceptable to Agent and (B) the aggregate amount of all such expenses  and cost reductions, together with addbacks to EBITDA pursuant to clause (c)(xii) of the definition  thereof, shall not exceed, for any 12 month period, 10% of EBITDA after giving effect to the inclusion of  such amounts.  2. LOANS AND TERMS OF PAYMENT.  2.1 Revolving Loans.  (a) Subject to the terms and conditions of this Agreement, and during the term of this  Agreement, each Revolving Lender agrees (severally, not jointly or jointly and severally) to make  revolving loans (“Revolving Loans”) to Borrowers in an amount at any one time outstanding not to  exceed the lesser of:  (i) such Lender’s Revolver Commitment, or  (ii) such Lender’s Pro Rata Share of an amount equal to the lesser of:  (A) the amount equal to (1) the Maximum Revolver Amount, less (2)  the sum of (y) the Letter of Credit Usage at such time, plus (z) the principal amount of Swing Loans  outstanding at such time, and  (B) the amount equal to (1) the Borrowing Base as of such date  (based upon the most recent Borrowing Base Certificate delivered by Borrowers to Agent, as adjusted for  Reserves established by Agent in accordance with Section 2.1(c)), less (2) the sum of (x) the Letter of  Credit Usage at such time, plus (y) the principal amount of Swing Loans outstanding at such time.  (b) Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to the  terms and conditions of this Agreement, reborrowed at any time during the term of this Agreement.  The  outstanding principal amount of the Revolving Loans, together with interest accrued and unpaid thereon,  shall constitute Obligations and shall be due and payable on the Maturity Date or, if earlier, on the date on  which they otherwise become due and payable pursuant to the terms of this Agreement.  (c) Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have the  right (but not the obligation) at any time, in the exercise of its Permitted Discretion, to establish and  increase or decrease Reserves and against the Borrowing Base or the Maximum Revolver Amount.  The  amount of any Reserve established by Agent, and any changes to the eligibility criteria set forth in the  definitions of Eligible Accounts and Eligible Blenders Tax Credit Accounts shall have a reasonable  relationship to the event, condition, other circumstance, or fact that is the basis for such reserve or change  in eligibility and shall not be duplicative of any other reserve established and currently maintained or  eligibility criteria.  Upon establishment or increase in Reserves, Agent agrees to make itself available to  discuss the Reserve or increase, and Borrowers may take such action as may be required so that the event,  condition, circumstance, or fact that is the basis for such reserve or increase no longer exists, in a manner  





 






   -52-      and to the extent reasonably satisfactory to Agent in the exercise of its Permitted Discretion. In no event  shall such opportunity limit the right of Agent to establish or change such Reserve, unless Agent shall  have determined, in its Permitted Discretion, that the event, condition, other circumstance, or fact that was  the basis for such Reserve or such change no longer exists or has otherwise been adequately addressed by  Borrowers.  Agent shall notify Borrowers at least 3 Business Days prior to the date on which any such  reserve is to be established or increased; provided, that (A) the Borrowers may not obtain any new  Revolving Loans (including Swing Loans) or Letters of Credit to the extent that such Revolving Loan  (including Swing Loans) or Letter of Credit would cause an Overadvance after giving effect to the  establishment or increase of such Reserve as set forth in such notice; (B) no such prior notice shall be  required for changes to any Reserves resulting solely by virtue of mathematical calculations of the  amount of the Reserve in accordance with the methodology of calculation set forth in this Agreement or  previously utilized; (C) no such prior notice shall be required during the continuance of any Event of  Default, (D) no such prior notice shall be required with respect to any Reserve established in respect of  any Lien that has priority over Agent’s Liens on the Collateral, and (E) no such prior notice shall be  required if, in the good faith determination of Agent, it is necessary to act sooner to preserve or protect  the Collateral or its value or the rights of Agent therein or to otherwise address any event, condition or  circumstance that, in the good faith judgment of Agent, is reasonably likely to cause a diminution in value  of the Collateral or to threaten the ability to realize upon any portion of the Collateral.  2.2 [Reserved].    2.3 Borrowing Procedures and Settlements.  (a) Procedure for Borrowing Revolving Loans.  Each Borrowing shall be made by  a written request by an Authorized Person delivered to Agent (which may be delivered through Agent’s  electronic platform or portal) and received by Agent no later than 11:00 a.m. (i) on the Business Day that  is the requested Funding Date in the case of a request for a Swing Loan and (ii) on the Business Day that  is one Business Day prior to the requested Funding Date in the case of a request for a Revolving Loan;  provided, that Agent may, in its sole discretion, elect to accept as timely requests that are received later  than 11:00 a.m. on the applicable Business Day.  All Borrowing requests which are not made on-line via  Agent’s electronic platform or portal shall be subject to (and unless Agent elects otherwise in the exercise  of its sole discretion, such Borrowings shall not be made until the completion of) Agent’s authentication  process (with results satisfactory to Agent) prior to the funding of any such requested  Revolving Loan.   (b) Making of Swing Loans.  In the case of a Revolving Loan and so long as any of  (i) the aggregate amount of Swing Loans made since the last Settlement Date, minus all payments or other  amounts applied to Swing Loans since the last Settlement Date, plus the amount of the requested Swing  Loan does not exceed $9,000,000, or (ii) Swing Lender, in its sole discretion, agrees to make a Swing  Loan notwithstanding the foregoing limitation, Swing Lender shall make a Revolving Loan (any such  Revolving Loan made by Swing Lender pursuant to this Section 2.3(b) being referred to as a “Swing  Loan” and all such Revolving Loans being referred to as “Swing Loans”) available to Borrowers on the  Funding Date applicable thereto by transferring immediately available funds in the amount of such  Borrowing to the Designated Account. Each Swing Loan shall be deemed to be a Revolving Loan  hereunder and shall be subject to all the terms and conditions (including Section 3) applicable to other  Revolving Loans, except that all payments (including interest) on any Swing Loan shall be payable to  Swing Lender solely for its own account.  Subject to the provisions of Section 2.3(d)(ii), Swing Lender  shall not make and shall not be obligated to make any Swing Loan if Swing Lender has actual knowledge  that (i) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on  the requested Funding Date for the applicable Borrowing, or (ii) the requested Borrowing would exceed  





 






   -53-      the Availability on such Funding Date.  Swing Lender shall not otherwise be required to determine  whether the applicable conditions precedent set forth in Section 3 have been satisfied on the Funding Date  applicable thereto prior to making any Swing Loan.  The Swing Loans shall be secured by Agent’s Liens,  constitute Revolving Loans and Obligations, and bear interest at the rate applicable from time to time to  Revolving Loans.  (c) Making of Revolving Loans.  (i) In the event that Swing Lender is not obligated to make a Swing Loan  and elects not to do so or a Borrower makes a request for a Revolving Loan (other than a Swing Loan),  then after receipt of a request for a Borrowing pursuant to Section 2.3(a)(i), Agent shall notify the  Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested  Borrowing; such notification to be sent on the Business Day that is at least one Business Day prior to the  requested Funding Date.  If Agent has notified the Lenders of a requested Borrowing on the Business Day  that is one Business Day prior to the Funding Date, then each Lender shall make the amount of such  Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to  Agent’s Account, not later than 10:00 a.m. on the Business Day that is the requested Funding Date.  After  Agent’s receipt of the proceeds of such Revolving Loans from the Lenders, Agent shall make the  proceeds thereof available to Borrowers on the applicable Funding Date by transferring immediately  available funds equal to such proceeds received by Agent to the Designated Account; provided, that  subject to the provisions of Section 2.3(d)(ii), no Lender shall have an obligation to make any Revolving  Loan, if (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied  on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or  (2) the requested Borrowing would cause Revolver Usage to exceed the Availability on such Funding  Date.  (ii) Unless Agent receives notice from a Lender prior to 9:30 a.m. on the  Business Day that is the requested Funding Date relative to a requested Borrowing as to which Agent has  notified the Lenders of a requested Borrowing that such Lender will not make available as and when  required hereunder to Agent for the account of Borrowers the amount of that Lender’s Pro Rata Share of  the Borrowing, Agent may assume that each Lender has made or will make such amount available to  Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required),  in reliance upon such assumption, make available to Borrowers a corresponding amount.  If, on the  requested Funding Date, any Lender shall not have remitted the full amount that it is required to make  available to Agent in immediately available funds and if Agent has made available to Borrowers such  amount on the requested Funding Date, then such Lender shall make the amount of such Lender’s Pro  Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s  Account, no later than 10:00 a.m. on the Business Day that is the first Business Day after the requested  Funding Date (in which case, the interest accrued on such Lender’s portion of such Borrowing for the  Funding Date shall be for Agent’s separate account).  If any Lender shall not remit the full amount that it  is required to make available to Agent in immediately available funds as and when required hereby and if  Agent has made available to Borrowers such amount, then that Lender shall be obligated to immediately  remit such amount to Agent, together with interest at the Defaulting Lender Rate for each day until the  date on which such amount is so remitted.  A notice submitted by Agent to any Lender with respect to  amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent manifest error.  If the amount that  a Lender is required to remit is made available to Agent, then such payment to Agent shall constitute such  Lender’s Revolving Loan for all purposes of this Agreement.  If such amount is not made available to  Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of  such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s  





 






   -54-      account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per  annum equal to the interest rate applicable at the time to the Revolving Loans composing such  Borrowing.  (d) Protective Advances and Optional Overadvances.  (i) Any contrary provision of this Agreement or any other Loan Document  notwithstanding (but subject to Section 2.3(d)(iv)), at any time (A) after the occurrence and during the  continuance of a Default or an Event of Default, or (B) that any of the other applicable conditions  precedent set forth in Section 3 are not satisfied, Agent hereby is authorized by Borrowers and the  Lenders, from time to time, in Agent’s sole discretion, to make Revolving Loans to, or for the benefit of,  Borrowers, on behalf of the Revolving Lenders, that Agent, in its Permitted Discretion, deems necessary  or desirable (1) to preserve or protect the Collateral, or any portion thereof, or (2) to enhance the  likelihood of repayment of the Obligations (other than the Bank Product Obligations) (the Revolving  Loans described in this Section 2.3(d)(i) shall be referred to as “Protective Advances”).  (ii) Any contrary provision of this Agreement or any other Loan Document  notwithstanding, the Lenders hereby authorize Agent or Swing Lender, as applicable, and either Agent or  Swing Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to make  Revolving Loans (including Swing Loans) to Borrowers notwithstanding that an Overadvance exists or  would be created thereby, so long as (A) after giving effect to such Revolving Loans, the outstanding  Revolver Usage does not exceed the Borrowing Base by more than 10% of the Borrowing Base, and (B)  subject to Section 2.3(d)(iv) below, after giving effect to such Revolving Loans, the outstanding Revolver  Usage (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group  Expenses) does not exceed the Maximum Revolver Amount.  In the event Agent obtains actual  knowledge that the Revolver Usage exceeds the amounts permitted by this Section 2.3(d), regardless of  the amount of, or reason for, such excess, Agent shall notify the Lenders as soon as practicable (and prior  to making any (or any additional) intentional Overadvances (except for and excluding amounts charged to  the Loan Account for interest, fees, or Lender Group Expenses) unless Agent determines that prior notice  would result in imminent harm to the Collateral or its value, in which case Agent may make such  Overadvances and provide notice as promptly as practicable thereafter), and the Lenders with Revolver  Commitments thereupon shall, together with Agent, jointly determine the terms of arrangements that shall  be implemented with Borrowers intended to reduce, within a reasonable time, the outstanding principal  amount of the Revolving Loans to Borrowers to an amount permitted by the preceding sentence.  In such  circumstances, if any Lender with a Revolver Commitment objects to the proposed terms of reduction or  repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented  according to the determination of the Required Lenders.  (iii) Each Protective Advance and each Overadvance (each, an  “Extraordinary Advance”) shall be deemed to be a Revolving Loan hereunder.  Prior to Settlement of any  Extraordinary Advance, all payments with respect thereto, including interest thereon, shall be payable to  Agent solely for its own account. Each Revolving Lender shall be obligated to settle with Agent as  provided in Section 2.3(e) (or Section 2.3(g), as applicable) for the amount of such Lender’s Pro Rata  Share of any Extraordinary Advance.  The Extraordinary Advances shall be repayable on demand,  secured by Agent’s Liens, constitute Obligations hereunder, and bear interest at the rate applicable from  time to time to Revolving Loans.  The provisions of this Section 2.3(d) are for the exclusive benefit of  Agent, Swing Lender, and the Lenders and are not intended to benefit Borrowers (or any other Loan  Party) in any way.  





 






   -55-      (iv) Notwithstanding anything contained in this Agreement or any other Loan  Document to the contrary, no Extraordinary Advance may be made by Agent if such Extraordinary  Advance would cause the aggregate Revolver Usage to exceed the Maximum Revolver Amount or any  Lender’s Pro Rata Share of the Revolver Usage to exceed such Lender’s Revolver Commitments;  provided that Agent may make Extraordinary Advances in excess of the foregoing limitations so long as  such Extraordinary Advances that cause the aggregate Revolver Usage to exceed the Maximum Revolver  Amount or a Lender’s Pro Rata Share of the Revolver Usage to exceed such Lender’s Revolver  Commitments are for Agent’s sole and separate account and not for the account of any Lender.  No  Lender shall have an obligation to settle with Agent for such Extraordinary Advances that cause the  aggregate Revolver Usage to exceed the Maximum Revolver Amount or a Lender’s Pro Rata Share of the  Revolver Usage to exceed such Lender’s Revolver Commitments as provided in Section 2.3(e) (or  Section 2.3(g), as applicable).  (e) Settlement.  It is agreed that each Lender’s funded portion of the Revolving  Loans is intended by the Lenders to equal, at all times, such Lender’s Pro Rata Share of the outstanding  Revolving Loans.  Such agreement notwithstanding, Agent, Swing Lender, and the other Lenders agree  (which agreement shall not be for the benefit of Borrowers) that in order to facilitate the administration of  this Agreement and the other Loan Documents, settlement among the Lenders as to the Revolving Loans  (including Swing Loans and Extraordinary Advances) shall take place on a periodic basis in accordance  with the following provisions:  (i) Agent shall request settlement (“Settlement”) with the Lenders on a  weekly basis, or on a more frequent basis if so determined by Agent in its sole discretion (1) on behalf of  Swing Lender, with respect to the outstanding Swing Loans, (2) for itself, with respect to the outstanding  Extraordinary Advances, and (3) with respect to any Loan Party’s or any of their Restricted Subsidiaries’  payments or other amounts received, as to each by notifying the Lenders by telecopy, telephone, or other  similar form of transmission, of such requested Settlement, no later than 2:00 p.m. on the Business Day  immediately prior to the date of such requested Settlement (the date of such requested Settlement being  the “Settlement Date”).  Such notice of a Settlement Date shall include a summary statement of the  amount of outstanding Revolving Loans (including Swing  Loans and Extraordinary Advances) for the  period since the prior Settlement Date.  Subject to the terms and conditions contained herein (including  Section 2.3(g)):  (y) if the amount of the Revolving Loans (including Swing Loans and Extraordinary  Advances) made by a Lender that is not a Defaulting Lender exceeds such Lender’s Pro Rata Share of the  Revolving Loans (including Swing Loans and Extraordinary Advances) as of a Settlement Date, then  Agent shall, by no later than 12:00 p.m. on the Settlement Date, transfer in immediately available funds to  a Deposit Account of such Lender (as such Lender may designate), an amount such that each such Lender  shall, upon receipt of such amount, have as of the Settlement Date, its Pro Rata Share of the Revolving  Loans (including Swing Loans and Extraordinary Advances), and (z) if the amount of the Revolving  Loans (including Swing Loans and Extraordinary Advances) made by a Lender is less than such Lender’s  Pro Rata Share of the Revolving Loans (including Swing Loans and Extraordinary Advances) as of a  Settlement Date, such Lender shall no later than 12:00 p.m. on the Settlement Date transfer in  immediately available funds to Agent’s Account, an amount such that each such Lender shall, upon  transfer of such amount, have as of the Settlement Date, its Pro Rata Share of the Revolving Loans  (including Swing Loans and Extraordinary Advances).  Such amounts made available to Agent under  clause (z) of the immediately preceding sentence shall be applied against the amounts of the applicable  Swing Loans or Extraordinary Advances and, together with the portion of such Swing Loans or  Extraordinary Advances representing Swing Lender’s Pro Rata Share thereof, shall constitute Revolving  Loans of such Lenders.  If any such amount is not made available to Agent by any Lender on the  Settlement Date applicable thereto to the extent required by the terms hereof, Agent shall be entitled to  





 






   -56-      recover for its account such amount on demand from such Lender together with interest thereon at the  Defaulting Lender Rate.  (ii) In determining whether a Lender’s balance of the Revolving Loans  (including Swing Loans and Extraordinary Advances) is less than, equal to, or greater than such Lender’s  Pro Rata Share of the Revolving Loans (including Swing Loans and Extraordinary Advances) as of a  Settlement Date, Agent shall, as part of the relevant Settlement, apply to such balance the portion of  payments actually received in good funds by Agent with respect to principal, interest, fees payable by  Borrowers and allocable to the Lenders hereunder, and proceeds of Collateral.  (iii) Between Settlement Dates, Agent, to the extent Extraordinary Advances  or Swing Loans are outstanding, may pay over to Agent or Swing Lender, as applicable, any payments or  other amounts received by Agent, that in accordance with the terms of this Agreement would be applied  to the reduction of the Revolving Loans, for application to the Extraordinary Advances or Swing Loans.   Between Settlement Dates, Agent, to the extent no Extraordinary Advances or Swing Loans are  outstanding, may pay over to Swing Lender any payments or other amounts received by Agent, that in  accordance with the terms of this Agreement would be applied to the reduction of the Revolving Loans,  for application to Swing Lender’s Pro Rata Share of the Revolving Loans.  If, as of any Settlement Date,  payments or other amounts of the Loan Parties or their Restricted Subsidiaries received since the then  immediately preceding Settlement Date have been applied to Swing Lender’s Pro Rata Share of the  Revolving Loans other than to Swing Loans, as provided for in the previous sentence, Swing Lender shall  pay to Agent for the accounts of the Lenders, and Agent shall pay to the Lenders (other than a Defaulting  Lender if Agent has implemented the provisions of Section 2.3(g)), to be applied to the outstanding  Revolving Loans of such Lenders, an amount such that each such Lender shall, upon receipt of such  amount, have, as of such Settlement Date, its Pro Rata Share of the Revolving Loans.  During the period  between Settlement Dates, Swing Lender with respect to Swing Loans, Agent with respect to  Extraordinary Advances, and each Lender with respect to the Revolving Loans other than Swing Loans  and Extraordinary Advances, shall be entitled to interest at the applicable rate or rates payable under this  Agreement on the daily amount of funds employed by Swing Lender, Agent, or the Lenders, as  applicable.  (iv) Anything in this Section 2.3(e) to the contrary notwithstanding, in the  event that a Lender is a Defaulting Lender, Agent shall be entitled to refrain from remitting settlement  amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set  forth in Section 2.3(g).  (f) Notation.  Consistent with Section 13.1(h), Agent, as a non-fiduciary agent for  Borrowers, shall maintain a register showing the principal amount and stated interest of the Revolving  Loans, owing to each Lender, including the Swing Loans owing to Swing Lender, and Extraordinary  Advances owing to Agent, and the interests therein of each Lender, from time to time and such register  shall, absent manifest error, conclusively be presumed to be correct and accurate.  (g) Defaulting Lenders.  (i) Notwithstanding the provisions of Section 2.4(b)(iii), Agent shall not be  obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting  Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the  Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any  such payments (A) first, to Agent to the extent of any Extraordinary Advances that were made by Agent  





 






   -57-      and that were required to be, but were not, paid by Defaulting Lender, (B) second, to Swing Lender to the  extent of any Swing Loans that were made by Swing Lender and that were required to be, but were not,  paid by the Defaulting Lender,  (C) third, to Issuing Bank, to the extent of the portion of a Letter of Credit  Disbursement that was required to be, but was not, paid by the Defaulting Lender, (D) fourth, to each  Non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the  extent that such Defaulting Lender’s portion of a Revolving Loan (or other funding obligation) was  funded by such other Non-Defaulting Lender), (E) fifth, in Agent’s sole discretion, to a suspense account  maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be  re-advanced to or for the benefit of Borrowers (upon the request of Borrowers and subject to the  conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Revolving Loans  (or other funding obligations) hereunder, and (F) sixth, from and after the date on which all other  Obligations have been paid in full, to such Defaulting Lender in accordance with tier (L) of Section  2.4(b)(iii).  Subject to the foregoing, Agent may hold and, in its discretion, re-lend to Borrowers for the  account of such Defaulting Lender the amount of all such payments received and retained by Agent for  the account of such Defaulting Lender.  Solely for the purposes of voting or consenting to matters with  respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and  for the purpose of calculating the fee payable under Section 2.10(b), such Defaulting Lender shall be  deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero; provided, that  the foregoing shall not apply to any of the matters governed by Section 14.1(a)(i) through (iii).  The  provisions of this Section 2.3(g) shall remain effective with respect to such Defaulting Lender until the  earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, Issuing Bank, and Borrowers  shall have waived, in writing, the application of this Section 2.3(g) to such Defaulting Lender, or (z) the  date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund  hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was  obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to  perform its future obligations hereunder (on which earlier date, so long as no Event of Default has  occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.3(g)(ii)  shall be released to Borrowers).  The operation of this Section 2.3(g) shall not be construed to increase or  otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting  Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the  performance by any Borrower of its duties and obligations hereunder to Agent, Issuing Bank, or to the  Lenders other than such Defaulting Lender.  Any failure by a Defaulting Lender to fund amounts that it  was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this  Agreement and shall entitle Borrowers, at their option, upon written notice to Agent, to arrange for a  substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender (if other  than an Eligible Transferee) to be reasonably acceptable to Agent.  In connection with the arrangement of  such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and  agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute  Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do  so) subject only to being paid its share of the outstanding Obligations (other than Bank Product  Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in respect  thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided,  that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute  a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting  Lender arising out of or in relation to such failure to fund.  In the event of a direct conflict between the  priority provisions of this Section 2.3(g) and any other provision contained in this Agreement or any other  Loan Document, it is the intention of the parties hereto that such provisions be read together and  construed, to the fullest extent possible, to be in concert with each other.  In the event of any actual,  





 






   -58-      irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.3(g)  shall control and govern.  (ii) If any Swing Loan or Letter of Credit is outstanding at the time that a  Lender becomes a Defaulting Lender then:  (A) such Defaulting Lender’s Swing Loan Exposure and Letter of  Credit Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their  respective Pro Rata Shares but only to the extent (x) the sum of all Non-Defaulting Lenders’ Pro Rata  Share of Revolver Usage plus such Defaulting Lender’s Swing Loan Exposure and Letter of Credit  Exposure does not exceed the total of all Non-Defaulting Lenders’ Revolver Commitments and (y) the  conditions set forth in Section 3.2 are satisfied at such time;   (B) if the reallocation described in clause (A) above cannot, or can  only partially, be effected, Borrowers shall within one Business Day following notice by Agent (x) first,  prepay such Defaulting Lender’s Swing Loan Exposure (after giving effect to any partial reallocation  pursuant to clause (A) above), and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit  Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), pursuant to a cash  collateral agreement to be entered into in form and substance reasonably satisfactory to Agent, for so long  as such Letter of Credit Exposure is outstanding; provided, that Borrowers shall not be obligated to cash  collateralize any Defaulting Lender’s Letter of Credit Exposure if such Defaulting Lender is also Issuing  Bank;  (C) if Borrowers cash collateralize any portion of such Defaulting  Lender’s Letter of Credit Exposure pursuant to this Section 2.3(g)(ii), Borrowers shall not be required to  pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender pursuant to Section  2.6(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit  Exposure during the period such Letter of Credit Exposure is cash collateralized;  (D) to the extent the Letter of Credit Exposure of the Non-Defaulting  Lenders is reallocated pursuant to this Section 2.3(g)(ii), then the Letter of Credit Fees payable to the  Non-Defaulting Lenders pursuant to Section 2.6(b) shall be adjusted in accordance with such Non- Defaulting Lenders’ Letter of Credit Exposure;  (E) to the extent any Defaulting Lender’s Letter of Credit Exposure  is neither cash collateralized nor reallocated pursuant to this Section 2.3(g)(ii), then, without prejudice to  any rights or remedies of Issuing Bank or any Lender hereunder, all Letter of Credit Fees that would have  otherwise been payable to such Defaulting Lender under Section 2.6(b) with respect to such portion of  such Letter of Credit Exposure shall instead be payable to Issuing Bank until such portion of such  Defaulting Lender’s Letter of Credit Exposure is cash collateralized or reallocated;  (F) so long as any Lender is a Defaulting Lender, the Swing Lender  shall not be required to make any Swing Loan and Issuing Bank shall not be required to issue, amend, or  increase any Letter of Credit, in each case, to the extent (x) the Defaulting Lender’s Pro Rata Share of  such Swing Loans or Letter of Credit cannot be reallocated pursuant to this Section 2.3(g)(ii), or (y) the  Swing Lender or Issuing Bank, as applicable, has not otherwise entered into arrangements reasonably  satisfactory to the Swing Lender or Issuing Bank, as applicable, and Borrowers to eliminate the Swing  Lender’s or Issuing Bank’s risk with respect to the Defaulting Lender’s participation in Swing Loans or  Letters of Credit; and  





 






   -59-      (G) Agent may release any cash collateral provided by Borrowers  pursuant to this Section 2.3(g)(ii) to Issuing Bank and Issuing Bank may apply any such cash collateral to  the payment of such Defaulting Lender’s Pro Rata Share of any Letter of Credit Disbursement that is not  reimbursed by Borrowers pursuant to Section 2.11(d).  Subject to Section 17.14, no reallocation  hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting  Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non- Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such  reallocation.  (h) Independent Obligations.  All Revolving Loans (other than Swing Loans and  Extraordinary Advances) shall be made by the Lenders contemporaneously and in accordance with their  Pro Rata Shares.  It is understood that (i) no Lender shall be responsible for any failure by any other  Lender to perform its obligation to make any Revolving Loan (or other extension of credit) hereunder, nor  shall any Commitment of any Lender be increased or decreased as a result of any failure by any other  Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations  hereunder shall excuse any other Lender from its obligations hereunder.  2.4 Payments; Reductions of Commitments; Prepayments.  (a) Payments by Borrowers.  (i) Except as otherwise expressly provided herein, all payments by  Borrowers shall be made to Agent’s Account for the account of the Lender Group and shall be made in  immediately available funds, no later than 1:30 p.m. on the date specified herein; provided that, for the  avoidance of doubt, any payments deposited into a Controlled Account shall be deemed not to be received  by Agent on any Business Day unless immediately available funds have been credited to Agent’s Account  prior to 1:30 p.m. on such Business Day.  Any payment received by Agent in immediately available funds  in Agent’s Account later than 1:30 p.m. shall be deemed to have been received (unless Agent, in its sole  discretion, elects to credit it on the date received) on the following Business Day and any applicable  interest or fee shall continue to accrue until such following Business Day.  (ii) Unless Agent receives notice from Borrowers prior to the date on which  any payment is due to the Lenders that Borrowers will not make such payment in full as and when  required, Agent may assume that Borrowers have made (or will make) such payment in full to Agent on  such date in immediately available funds and Agent may (but shall not be so required), in reliance upon  such assumption, distribute to each Lender on such due date an amount equal to the amount then due such  Lender.  If and to the extent Borrowers do not make such payment in full to Agent on the date when due,  each Lender severally shall repay to Agent on demand such amount distributed to such Lender, together  with interest thereon at the Defaulting Lender Rate for each day from the date such amount is distributed  to such Lender until the date repaid.  (b) Apportionment and Application.  (i) So long as no Application Event has occurred and is continuing and  except as otherwise provided herein with respect to Defaulting Lenders, all principal and interest  payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid  principal balance of the Obligations to which such payments relate held by each Lender) and all payments  of fees and expenses received by Agent (other than fees or expenses that are for Agent’s separate account  





 






   -60-      or for the separate account of Issuing Bank) shall be apportioned ratably among the Lenders having a Pro  Rata Share of the type of Commitment or Obligation to which a particular fee or expense relates.  (ii) Subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e), all  payments to be made hereunder by Borrowers shall be remitted to Agent and all such payments, and all  proceeds of Collateral received by Agent, shall be applied, so long as no Application Event has occurred  and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, to reduce  the balance of the Revolving Loans outstanding and, thereafter, to Borrowers (to be wired to the  Designated Account) or such other Person entitled thereto under applicable law.  (iii) At any time that an Application Event has occurred and is continuing and  except as otherwise provided herein with respect to Defaulting Lenders, all payments remitted to Agent  and all proceeds of Collateral received by Agent shall be applied as follows:  (A) first, to pay any Lender Group Expenses (including cost or  expense reimbursements) or indemnities then due to Agent under the Loan Documents and to pay interest  and principal on Extraordinary Advances that are held solely by Agent pursuant to the terms of Section  2.4(d)(iv), until paid in full,  (B) second, to pay any fees or premiums then due to Agent under the  Loan Documents, until paid in full,  (C) third, to pay interest due in respect of all Protective Advances,  until paid in full,  (D) fourth, to pay the principal of all Protective Advances, until paid  in full,  (E) fifth, ratably, to pay any Lender Group Expenses (including cost  or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents,  until paid in full,  (F) sixth, ratably, to pay any fees or premiums then due to any of the  Lenders under the Loan Documents, until paid in full,  (G) seventh, to pay interest accrued in respect of the Swing Loans,  until paid in full,  (H) eighth, to pay the principal of all Swing Loans, until paid in full,  (I) ninth, ratably, to pay interest accrued in respect of the Revolving  Loans (other than Protective Advances and Swing Loans), until paid in full,  (J) tenth, ratably  i. ratably, to pay the principal of all Revolving Loans (other  than Protective Advances and Swing Loans), until paid in full,  ii. to Agent, to be held by Agent, for the benefit of Issuing  Bank (and for the ratable benefit of each of the Lenders that have an obligation to pay to Agent, for the  





 






   -61-      account of Issuing Bank, a share of each Letter of Credit Disbursement), as cash collateral in an amount up  to 103% of the Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall  be applied to the reimbursement of any Letter of Credit Disbursement as and when such disbursement  occurs and, if a Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Letter  of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii),  beginning with tier (A) hereof),  iii. ratably to (y) the Bank Product Providers based upon  amounts then certified by each applicable Bank Product Provider to Agent (in form and substance  satisfactory to Agent) to be due and payable to such Bank Product Provider on account of Bank Product  Obligations, and (z) with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of the  Bank Product Providers, as cash collateral (which cash collateral may be released by Agent to the applicable  Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any  amounts due and payable with respect to Bank Product Obligations owed to the applicable Bank Product  Provider as and when such amounts first become due and payable and, if and at such time as all such Bank  Product Obligations are paid or otherwise satisfied in full, the cash collateral held by Agent in respect of  such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iii), beginning with tier  (A) hereof,  (K) eleventh, to pay any other Obligations other than Obligations  owed to Defaulting Lenders,  (L) twelfth, ratably to pay any Obligations owed to Defaulting  Lenders; and  (M) thirteenth, to Borrowers (to be wired to the Designated Account)  or such other Person entitled thereto under applicable law.  (iv) Agent promptly shall distribute to each Lender, pursuant to the  applicable wire instructions received from each Lender in writing, such funds as it may be entitled to  receive, subject to a Settlement delay as provided in Section 2.3(e).  (v) In each instance, so long as no Application Event has occurred and is  continuing, Section 2.4(b)(ii) shall not apply to any payment made by Borrowers to Agent and specified  by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under  any provision of this Agreement or any other Loan Document.  (vi) For purposes of Section 2.4(b)(iii), “paid in full” of a type of Obligation  means payment in cash or immediately available funds of all amounts owing on account of such type of  Obligation, including interest accrued after the commencement of any Insolvency Proceeding, default  interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing  would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.  (vii) In the event of a direct conflict between the priority provisions of this  Section 2.4 and any other provision contained in this Agreement or any other Loan Document, it is the  intention of the parties hereto that such provisions be read together and construed, to the fullest extent  possible, to be in concert with each other.  In the event of any actual, irreconcilable conflict that cannot be  resolved as aforesaid, if the conflict relates to the provisions of Section 2.3(g) and this Section 2.4, then  





 






   -62-      the provisions of Section 2.3(g) shall control and govern, and if otherwise, then the terms and provisions  of this Section 2.4 shall control and govern.  (c) Reduction of Commitments.  (i) Revolver Commitments.  The Revolver Commitments shall terminate  on the Maturity Date or earlier termination thereof pursuant to the terms of this Agreement.  Borrowers  may reduce the Revolver Commitments, without premium or penalty, to an amount not less than the sum  of (A) the Revolver Usage as of such date, plus (B) the principal amount of all Revolving Loans not yet  made as to which a request has been given by Borrowers under Section 2.3(a), plus (C) the amount of all  Letters of Credit not yet issued as to which a request has been given by Borrowers pursuant to Section  2.11(a).  Each such reduction shall be in an amount which is not less than $5,000,000 (unless the  Revolver Commitments are being reduced to zero and the amount of the Revolver Commitments in effect  immediately prior to such reduction are less than $5,000,000), shall be made by providing not less than  five (5) Business Days prior written notice to Agent, and shall be irrevocable, provided, that, (x) a notice  of reduction of the Revolver Commitments pursuant to this Section 2.4(c) may state that such notice is  conditioned upon the occurrence of one or more events specified therein, in which case such notice may  be revoked or modified by Administrative Borrower (by notice to Agent on or prior to the specified date  of reduction) if such condition is not satisfied (in which case, a new notice shall be required to be sent in  connection with any subsequent reduction) and (y) the Administrative Borrower may extend the date of  reduction at any time with the consent of Agent.  The Revolver Commitments, once reduced, may not be  increased.  Each such reduction of the Revolver Commitments shall reduce the Revolver Commitments of  each Lender proportionately in accordance with its ratable share thereof.  In connection with any  reduction in the Revolver Commitments prior to the Maturity Date, if any Loan Party or any of its  Subsidiaries owns any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with  sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers,  together with such other documentation as Agent shall reasonably request, in order to enable Agent and  the Lenders to comply with any of the requirements under Regulations T, U or X of the Board of  Governors.  (ii) [Reserved].  (d) Optional Prepayments.  (i) Revolving Loans.  Borrowers may prepay the principal of any  Revolving Loan at any time in whole or in part, without premium or penalty.  (ii) [Reserved].  (e) Mandatory Prepayments.  (i) Borrowing Base.  If, at any time, (A) the Revolver Usage on such date  exceeds (B) the lesser of (x) the Borrowing Base reflected in the Borrowing Base Certificate most  recently delivered by Borrowers to Agent, or (y) the Maximum Revolver Amount, in all cases as adjusted  for Reserves established by Agent in accordance with Section 2.1(c), then Borrowers shall promptly, but  in any event within one (1) Business Day, prepay the Obligations in accordance with Section 2.4(f)(i) in  an aggregate amount equal to the amount of such excess.  (ii) [Reserved].  





 






   -63-      (iii) [Reserved].   (iv) [Reserved].    (v) [Reserved].    (vi) [Reserved].  (vii) [Reserved].   (f) Application of Payments.  (i) Each prepayment pursuant to Section 2.4(e)(i) shall, (1) so long as no  Application Event shall have occurred and be continuing, be applied, first, to the outstanding principal  amount of the Revolving Loans until paid in full, and second, to cash collateralize the Letters of Credit in  an amount equal to 103% of the then outstanding Letter of Credit Usage, and (2) if an Application Event  shall have occurred and be continuing, be applied in the manner set forth in Section 2.4(b)(iii).  (ii) [Reserved].    2.5 Promise to Pay; Promissory Notes.  (a) Borrowers agree to pay the Lender Group Expenses on the earlier of (i) the first  day of the month following the date on which the applicable Lender Group Expenses were first incurred,  or (ii) the date on which demand therefor is made by Agent (it being acknowledged and agreed that any  charging of such costs, expenses or Lender Group Expenses to the Loan Account pursuant to the  provisions of Section 2.6(d) shall be deemed to constitute a demand for payment thereof for the purposes  of this subclause (ii)).  Borrowers promise to pay all of the Obligations (including principal, interest,  premiums, if any, fees, costs, and expenses (including Lender Group Expenses)) in full on the Maturity  Date or, if earlier, on the date on which the Obligations (other than the Bank Product Obligations) become  due and payable pursuant to the terms of this Agreement.  Borrowers agree that their obligations  contained in the first sentence of this Section 2.5(a) shall survive payment or satisfaction in full of all  other Obligations.  Upon the request of Administrative Borrower, Agent will provide Administrative  Borrower with copies of invoices (which may be summary invoices) that Administrative Agent receives  from third parties that include amounts constituting Lender Group Expenses.  (b) Any Lender may request that any portion of its Commitments or the Loans made  by it be evidenced by one or more promissory notes.  In such event, Borrowers shall execute and deliver  to such Lender the requested promissory notes payable to the order of such Lender in a form furnished by  Agent and reasonably satisfactory to Borrowers.  Thereafter, the portion of the Commitments and Loans  evidenced by such promissory notes and interest thereon shall at all times be represented by one or more  promissory notes in such form payable to the order of the payee named therein.  2.6 Interest Rates and Letter of Credit Fee:  Rates, Payments, and Calculations.  (a) Interest Rates.  Except as provided in Section 2.6(c) and Section 2.12, all  Obligations (except for undrawn Letters of Credit) that have been charged to the Loan Account pursuant  to the terms hereof shall bear interest at a per annum rate equal to Daily Simple SOFR plus the  Applicable Margin.  





 






   -64-      (b) Letter of Credit Fee.  Borrowers shall pay Agent (for the ratable benefit of the  Revolving Lenders), a Letter of Credit fee (the “Letter of Credit Fee”) (which fee shall be in addition to  the fronting fees and commissions, other fees, charges and expenses set forth in Section 2.11(k)) that shall  accrue at a per annum rate equal to 1.75% times the average amount of the Letter of Credit Usage during  the immediately preceding month.  (c) Default Rate.   (i) Automatically upon the occurrence and during the  continuation of an Event of Default under Section 8.4 or 8.5 and (ii) upon the occurrence and during the  continuation of any other Event of Default (other than an Event of Default under Section 8.4 or 8.5),  at  the direction of Agent or the Required Lenders, and upon written notice by Agent to Borrowers of such  direction (provided, that such notice shall not be required for any Event of Default under Section 8.1), (A)  all Loans and all Obligations (except for undrawn Letters of Credit) that have been charged to the Loan  Account pursuant to the terms hereof shall bear interest at a per annum rate equal to two percentage  points above the per annum rate otherwise applicable thereunder, and (B) the Letter of Credit Fee shall be  increased to two (2) percentage points above the per annum rate otherwise applicable hereunder.    (d) Payment.  Except to the extent provided to the contrary in Section 2.10 or  Section 2.11(k), (i) all interest and all other fees payable hereunder or under any of the other Loan  Documents (other than Letter of Credit Fees) shall be due and payable, in arrears, on the first day of each  month (ii) all Letter of Credit Fees payable hereunder, and all fronting fees and all commissions, other  fees, charges and expenses provided for in Section 2.11(k) shall be due and payable, in arrears, on the first  Business Day of each month, and (iii) all costs and expenses payable hereunder or under any of the other  Loan Documents, and all other Lender Group Expenses shall be due and payable on (x) with respect to  Lender Group Expenses outstanding as of the Closing Date, the Closing Date, and (y) otherwise, the  earlier of (A) the first Business Day of the month following the date on which Administrative Borrower  receives notice that the applicable costs, expenses, or Lender Group Expenses were first incurred, or (B)  the date on which demand therefor is made by Agent (it being acknowledged and agreed that any  charging of such costs, expenses or Lender Group Expenses to the Loan Account pursuant to the  provisions of the following sentence shall be deemed to constitute a demand for payment thereof for the  purposes of this subclause (y)).  Borrowers hereby authorize Agent, from time to time without prior notice  to Borrowers, to charge to the Loan Account (A) on the first day of each month, all interest accrued  during the prior month on the Revolving Loans hereunder, (B) on the first Business Day of each month,  all Letter of Credit Fees accrued or chargeable hereunder during the prior month, (C) as and when  incurred or accrued, all fees and costs provided for in Section 2.10(a) or (c), (D) on the first day of each  month, the Unused Line Fee accrued during the prior month pursuant to Section 2.10(b), (E) as and when  due and payable, all other fees payable hereunder or under any of the other Loan Documents, (F) as and  when incurred or accrued, all other Lender Group Expenses, and (G) as and when due and payable all  other payment obligations payable under any Loan Document or any Bank Product Agreement (including  any amounts due and payable to the Bank Product Providers in respect of Bank Products).  All amounts  (including interest, fees, costs, expenses, Lender Group Expenses, or other amounts payable hereunder or  under any other Loan Document or under any Bank Product Agreement) charged to the Loan Account  shall thereupon constitute Revolving Loans hereunder.  (e) Computation.  All interest and fees chargeable under the Loan Documents shall  be computed on the basis of a 360 day year, in each case, for the actual number of days elapsed in the  period during which the interest or fees accrue.  In the event Daily Simple SOFR (or the Base Rate under  Section 2.12, if applicable) is changed from time to time hereafter, the rates of interest hereunder based  upon Daily Simple SOFR (or the Base Rate under Section 2.12, if applicable) automatically and  





 






   -65-      immediately shall be increased or decreased by an amount equal to such change in Daily Simple SOFR  (or, the Base Rate under Section 2.12, if applicable).  (f) Intent to Limit Charges to Maximum Lawful Rate.  In no event shall the  interest rate or rates payable under this Agreement, plus any other amounts paid in connection herewith,  exceed the highest rate permissible under any law that a court of competent jurisdiction shall, in a final  determination, deem applicable.  Borrowers and the Lender Group, in executing and delivering this  Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated within  it; provided, that anything contained herein to the contrary notwithstanding, if such rate or rates of interest  or manner of payment exceeds the maximum allowable under applicable law, then, ipso facto, as of the  date of this Agreement, Borrowers are and shall be liable only for the payment of such maximum amount  as is allowed by law, and payment received from Borrowers in excess of such legal maximum, whenever  received, shall be applied to reduce the principal balance of the Obligations to the extent of such excess.  2.7 Crediting Payments.  The receipt of any payment item by Agent shall not be required to  be considered a payment on account unless such payment item is a wire transfer of immediately available  funds made to Agent’s Account or unless and until such payment item is honored when presented for  payment.  Should any payment item not be honored when presented for payment, then Borrowers shall be  deemed not to have made such payment.  Anything to the contrary contained herein notwithstanding, any  payment item shall be deemed received by Agent only if it is received into Agent’s Account on a  Business Day on or before 1:30 p.m.  If any payment item is received into Agent’s Account on a non- Business Day or after 1:30 p.m. on a Business Day (unless Agent, in its sole discretion, elects to credit it  on the date received), it shall be deemed to have been received by Agent as of the opening of business on  the immediately following Business Day.  2.8 Designated Account.  Agent is authorized to make the Revolving Loans, and Issuing  Bank is authorized to issue the Letters of Credit, under this Agreement based upon telephonic or other  instructions received from anyone purporting to be an Authorized Person or, without instructions, if  pursuant to Section 2.6(d).  Borrowers agree to establish and maintain the Designated Account with the  Designated Account Bank for the purpose of receiving the proceeds of the Revolving Loans requested by  Borrowers and made by Agent or the Lenders hereunder.  Unless otherwise agreed by Agent and  Borrowers, any Revolving Loan or Swing Loan requested by Borrowers and made by Agent or the  Lenders hereunder shall be made to the Designated Account.  2.9 Maintenance of Loan Account; Statements of Obligations.  Agent shall maintain an  account on its books in the name of Borrowers (the “Loan Account”) on which Borrowers will be charged  with all Revolving Loans (including Extraordinary Advances and Swing Loans) made by Agent, Swing  Lender, or the Lenders to Borrowers or for Borrowers’ account, the Letters of Credit issued or arranged  by Issuing Bank for Borrowers’ account, and with all other payment Obligations hereunder or under the  other Loan Documents, including, accrued interest, fees and expenses, and Lender Group Expenses.  In  accordance with Section 2.7, the Loan Account will be credited with all payments received by Agent from  Borrowers or for Borrowers’ account.  Agent shall make available to Borrowers monthly statements  regarding the Loan Account, including the principal amount of the Revolving Loans, interest accrued  hereunder, fees accrued or charged hereunder or under the other Loan Documents, and a summary  itemization of all charges and expenses constituting Lender Group Expenses accrued hereunder or under  the other Loan Documents, and each such statement, absent manifest error, shall be conclusively  presumed to be correct and accurate and constitute an account stated between Borrowers and the Lender  Group unless, within 30 days after Agent first makes such a statement available to Borrowers, Borrowers  shall deliver to Agent written objection thereto describing the error or errors contained in such statement.  





 






   -66-      2.10 Fees.   (a) Agent Fees.  Borrowers shall pay to Agent, for the account of Agent, as and  when due and payable under the terms of the Fee Letter, the fees set forth in the Fee Letter.  (b) Unused Line Fee.  Borrowers shall pay to Agent, for the ratable account of the  Revolving Lenders, an unused line fee (the “Unused Line Fee”) in an amount equal to the Applicable  Unused Line Fee Percentage per annum times the result of (i) the aggregate amount of the Revolver  Commitments, less (ii) the Average Revolver Usage during the immediately preceding month (or portion  thereof), which Unused Line Fee shall be due and payable, in arrears, on the first day of each month from  and after the Closing Date up to the first day of the month prior to the date on which the Obligations are  paid in full and on the date on which the Obligations are paid in full.  (c) Field Examination and Other Fees.  Subject to any limitations set forth in  Section 5.7(c), Borrowers shall pay to Agent, field examination, appraisal, and valuation fees and charges,  as and when incurred or chargeable, including (i) Agent’s customary field examiner fees, plus reasonable  and documented out-of-pocket expenses (including travel, meals, and lodging) for each field examination  of any Loan Party or its Restricted Subsidiaries performed by or on behalf of Agent, and (ii) the  reasonable and documented fees, charges or expenses paid or incurred by Agent if it elects to employ the  services of one or more third Persons to appraise the Collateral, or any portion thereof.    2.11 Letters of Credit.  (a) Subject to the terms and conditions of this Agreement, upon the request of  Borrowers made in accordance herewith, and prior to the Maturity Date, Issuing Bank agrees to issue a  requested standby Letter of Credit or a sight commercial Letter of Credit for the account of Borrowers.   By submitting a request to Issuing Bank for the issuance of a Letter of Credit, Borrowers shall be deemed  to have requested that Issuing Bank issue the requested Letter of Credit.  Each request for the issuance of  a Letter of Credit, or the amendment or extension of any outstanding Letter of Credit, shall be (i)  irrevocable and  made in writing by an Authorized Person, (ii) delivered to Agent and Issuing Bank via  telefacsimile or other electronic method of transmission reasonably acceptable to Agent and Issuing Bank  and reasonably in advance of the requested date of issuance, amendment, or extension, and (iii) subject to  Issuing Bank’s authentication procedures with results satisfactory to Issuing Bank.  Each such request  shall be in form and substance reasonably satisfactory to Agent and Issuing Bank and (i) shall specify (A)  the amount of such Letter of Credit, (B) the date of issuance, amendment, or extension of such Letter of  Credit, (C) the proposed expiration date of such Letter of Credit, (D) the name and address of the  beneficiary of the Letter of Credit, and (E) such other information (including, the conditions to drawing,  and, in the case of an amendment or extension, identification of the Letter of Credit to be so amended or  extended) as shall be necessary to prepare, amend, or extend such Letter of Credit, and (ii) shall be  accompanied by such Issuer Documents as Agent or Issuing Bank may request or require, to the extent  that such requests or requirements are consistent with the Issuer Documents that Issuing Bank generally  requests for Letters of Credit in similar circumstances.  Issuing Bank’s records of the content of any such  request will be conclusive.  Anything contained herein to the contrary notwithstanding, Issuing Bank  may, but shall not be obligated to, issue a Letter of Credit that supports the obligations of a Loan Party or  one of its Subsidiaries in respect of (x) a lease of real property to the extent that the face amount of such  Letter of Credit exceeds the highest rent (including all rent-like charges) payable under such lease for a  period of one year, or (y) an employment contract to the extent that the face amount of such Letter of  Credit exceeds the highest compensation payable under such contract for a period of one year.  





 






   -67-      (b) Issuing Bank shall have no obligation to issue a Letter of Credit if any of the  following would result after giving effect to the requested issuance:  (i) the Letter of Credit Usage would exceed the Letter of Credit Sublimit, or  (ii) [reserved]; or  (iii) the Letter of Credit Usage would exceed the Maximum Revolver  Amount less the outstanding amount of Revolving Loans (including Swing Loans), or  (iv) the Letter of Credit Usage would exceed the Borrowing Base at such  time less the outstanding principal balance of the Revolving Loans (inclusive of Swing Loans) at such  time.  (c) In the event there is a Defaulting Lender as of the date of any request for the  issuance of a Letter of Credit, Issuing Bank shall not be required to issue or arrange for such Letter of  Credit to the extent (i) the Defaulting Lender’s Letter of Credit Exposure with respect to such Letter of  Credit may not be reallocated pursuant to Section 2.3(g)(ii), or (ii) Issuing Bank has not otherwise entered  into arrangements reasonably satisfactory to it and Borrowers to eliminate Issuing Bank’s risk with  respect to the participation in such Letter of Credit of the Defaulting Lender, which arrangements may  include Borrowers cash collateralizing such Defaulting Lender’s Letter of Credit Exposure in accordance  with Section 2.3(g)(ii).  Additionally, Issuing Bank shall have no obligation to issue or extend a Letter of  Credit if (A) any order, judgment, or decree of any Governmental Authority or arbitrator shall, by its  terms, purport to enjoin or restrain Issuing Bank from issuing such Letter of Credit, or any law applicable  to Issuing Bank or any request or directive (whether or not having the force of law) from any  Governmental Authority with jurisdiction over Issuing Bank shall prohibit or request that Issuing Bank  refrain from the issuance of letters of credit generally or such Letter of Credit in particular, or (B) the  issuance of such Letter of Credit would violate one or more policies of Issuing Bank applicable to letters  of credit generally, or (C) if amounts demanded to be paid under any Letter of Credit will not or may not  be in United States Dollars.  (d) Any Issuing Bank (other than Wells Fargo or any of its Affiliates) shall notify  Agent in writing no later than the Business Day prior to the Business Day on which such Issuing Bank  issues any Letter of Credit.  In addition, each Issuing Bank (other than Wells Fargo or any of its  Affiliates) shall, on the first Business Day of each week, submit to Agent a report detailing the daily  undrawn amount of each Letter of Credit issued by such Issuing Bank during the prior calendar week.   Each Letter of Credit shall be in form and substance reasonably acceptable to Issuing Bank, including the  requirement that the amounts payable thereunder must be payable in Dollars.  If Issuing Bank makes a  payment under a Letter of Credit, Borrowers shall pay to Agent an amount equal to the applicable Letter  of Credit Disbursement on the Business Day such Letter of Credit Disbursement is made and, in the  absence of such payment, the amount of the Letter of Credit Disbursement immediately and automatically  shall be deemed to be a Revolving Loan hereunder (notwithstanding any failure to satisfy any condition  precedent set forth in Section 3) and, initially, shall bear interest at the rate then applicable to Revolving  Loans. If a Letter of Credit Disbursement is deemed to be a Revolving Loan hereunder, Borrowers’  obligation to pay the amount of such Letter of Credit Disbursement to Issuing Bank shall be automatically  converted into an obligation to pay the resulting Revolving Loan, and no Default or Event of Default shall  result solely from Borrower's failure to repay such disbursement as required by the immediately  preceding sentence.  Promptly following receipt by Agent of any payment from Borrowers pursuant to  this paragraph, Agent shall distribute such payment to Issuing Bank or, to the extent that Revolving  





 






   -68-      Lenders have made payments pursuant to Section 2.11(e) to reimburse Issuing Bank, then to such  Revolving Lenders and Issuing Bank as their interests may appear.  (e) Promptly following receipt of a notice of a Letter of Credit Disbursement  pursuant to Section 2.11(d), each Revolving Lender agrees to fund its Pro Rata Share of any Revolving  Loan deemed made pursuant to Section 2.11(d) on the same terms and conditions as if Borrowers had  requested the amount thereof as a Revolving Loan and Agent shall promptly pay to Issuing Bank the  amounts so received by it from the Revolving Lenders.  By the issuance of a Letter of Credit (or an  amendment or extension of a Letter of Credit) and without any further action on the part of Issuing Bank  or the Revolving Lenders, Issuing Bank shall be deemed to have granted to each Revolving Lender, and  each Revolving Lender shall be deemed to have purchased, a participation in each Letter of Credit issued  by Issuing Bank, in an amount equal to its Pro Rata Share of such Letter of Credit, and each such  Revolving Lender agrees to pay to Agent, for the account of Issuing Bank, such Revolving Lender’s Pro  Rata Share of any Letter of Credit Disbursement made by Issuing Bank under the applicable Letter of  Credit.  In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely  and unconditionally agrees to pay to Agent, for the account of Issuing Bank, such Revolving Lender’s Pro  Rata Share of each Letter of Credit Disbursement made by Issuing Bank and not reimbursed by  Borrowers on the date due as provided in Section 2.11(d), or of any reimbursement payment that is  required to be refunded (or that Agent or Issuing Bank elects, based upon the advice of counsel, to refund)  to Borrowers for any reason.  Each Revolving Lender acknowledges and agrees that its obligation to  deliver to Agent, for the account of Issuing Bank, an amount equal to its respective Pro Rata Share of  each Letter of Credit Disbursement pursuant to this Section 2.11(e) shall be absolute and unconditional  and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default  or Default or the failure to satisfy any condition set forth in Section 3.  If any such Revolving Lender fails  to make available to Agent the amount of such Revolving Lender’s Pro Rata Share of a Letter of Credit  Disbursement as provided in this Section, such Revolving Lender shall be deemed to be a Defaulting  Lender and Agent (for the account of Issuing Bank) shall be entitled to recover such amount on demand  from such Revolving Lender together with interest thereon at the Defaulting Lender Rate until paid in  full.  (f) Each Borrower agrees to indemnify, defend and hold harmless each member of  the Lender Group (including Issuing Bank and its branches, Affiliates, and correspondents) and each such  Person’s respective directors, officers, employees, attorneys and agents (each, including Issuing Bank, a  “Letter of Credit Related Person”) (to the fullest extent permitted by law) from and against any and all  claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and  damages, and all reasonable fees and disbursements of attorneys, experts, or consultants and all other  costs and expenses actually incurred in connection therewith or in connection with the enforcement of this  indemnification (as and when they are incurred and irrespective of whether suit is brought), which may be  incurred by or awarded against any such Letter of Credit Related Person (other than Taxes, which shall be  governed by Section 16) (the “Letter of Credit Indemnified Costs”), and which arise out of or in  connection with, or as a result of:  (i) any Letter of Credit or any pre-advice of its issuance;  (ii) any transfer, sale, delivery, surrender or endorsement (or lack thereof) of  any Drawing Document at any time(s) held by any such Letter of Credit Related Person in connection  with any Letter of Credit;  





 






   -69-      (iii) any action or proceeding arising out of, or in connection with, any Letter  of Credit (whether administrative, judicial or in connection with arbitration), including any action or  proceeding to compel or restrain any presentation or payment under any Letter of Credit, or for the  wrongful dishonor of, or honoring a presentation under, any Letter of Credit;  (iv) any independent undertakings issued by the beneficiary of any Letter of  Credit;  (v) any unauthorized instruction or request made to Issuing Bank in  connection with any Letter of Credit or requested Letter of Credit, or any error, omission, interruption or  delay in such instruction or request, whether transmitted by mail, courier, electronic transmission,  SWIFT, or any other telecommunication including communications through a correspondent;  (vi) an adviser, confirmer or other nominated person seeking to be  reimbursed, indemnified or compensated;  (vii) any third party seeking to enforce the rights of an applicant, beneficiary,  nominated person, transferee, assignee of Letter of Credit proceeds or holder of an instrument or  document;  (viii) the fraud, forgery or illegal action of parties other than the Letter of  Credit Related Person;  (ix) any prohibition on payment or delay in payment of any amount payable  by Issuing Bank to a beneficiary or transferee beneficiary of a Letter of Credit arising out of Anti- Corruption Laws, Anti-Money Laundering Laws, or Sanctions;   (x) Issuing Bank’s performance of the obligations of a confirming institution  or entity that wrongfully dishonors a confirmation;   (xi) any foreign language translation provided to Issuing Bank in connection  with any Letter of Credit;    (xii) any foreign law or usage as it relates to Issuing Bank’s issuance of a  Letter of Credit in support of a foreign guaranty including the expiration of such guaranty after the related  Letter of Credit expiration date and any resulting drawing paid by Issuing Bank in connection therewith;  or   (xiii) the acts or omissions, whether rightful or wrongful, of any present or  future de jure or de facto governmental or regulatory authority or cause or event beyond the control of the  Letter of Credit Related Person;  provided, that such indemnity shall not be available to any Letter of Credit Related Person claiming  indemnification under clauses (i) through (xiii) above to the extent that such Letter of Credit Indemnified  Costs may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction to  have resulted directly from the gross negligence or willful misconduct of the Letter of Credit Related Person  claiming indemnity.  Borrowers hereby agree to pay the Letter of Credit Related Person claiming indemnity  on demand from time to time all amounts owing under this Section 2.11(f).  If and to the extent that the  obligations of Borrowers under this Section 2.11(f) are unenforceable for any reason, Borrowers agree to  





 






   -70-      make the maximum contribution to the Letter of Credit Indemnified Costs permissible under applicable  law.  This indemnification provision shall survive termination of this Agreement and all Letters of Credit.  (g) The liability of Issuing Bank (or any other Letter of Credit Related Person)  under, in connection with or arising out of any Letter of Credit (or pre-advice), regardless of the form or  legal grounds of the action or proceeding, shall be limited to direct damages suffered by Borrowers that  are caused directly by Issuing Bank’s gross negligence or willful misconduct in (i) honoring a  presentation under a Letter of Credit that on its face does not at least substantially comply with the terms  and conditions of such Letter of Credit, (ii) failing to honor a presentation under a Letter of Credit that  strictly complies with the terms and conditions of such Letter of Credit, or (iii) retaining Drawing  Documents presented under a Letter of Credit.  Borrowers’ aggregate remedies against Issuing Bank and  any Letter of Credit Related Person for wrongfully honoring a presentation under any Letter of Credit or  wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by  Borrowers to Issuing Bank in respect of the honored presentation in connection with such Letter of Credit  under Section 2.11(d), plus interest at the rate then applicable to Revolving Loans hereunder.  Borrowers  shall take action to avoid and mitigate the amount of any damages claimed against Issuing Bank or any  other Letter of Credit Related Person, including by enforcing its rights against the beneficiaries of the  Letters of Credit.  Any claim by Borrowers under or in connection with any Letter of Credit shall be  reduced by an amount equal to the sum of (x) the amount (if any) saved by Borrowers as a result of the  breach or alleged wrongful conduct complained of, and (y) the amount (if any) of the loss that would have  been avoided had Borrowers taken all reasonable steps to mitigate any loss, and in case of a claim of  wrongful dishonor, by specifically and timely authorizing Issuing Bank to effect a cure.  (h) Borrowers are responsible for the final text of the Letter of Credit as issued by  Issuing Bank, irrespective of any assistance Issuing Bank may provide such as drafting or recommending  text or by Issuing Bank’s use or refusal to use text submitted by Borrowers. Borrowers understand that  the final form of any Letter of Credit may be subject to such revisions and changes as are deemed  necessary or appropriate by Issuing Bank, and Borrowers hereby consent to such revisions and changes  not materially different from the application executed in connection therewith. Borrowers are solely  responsible for the suitability of the Letter of Credit for Borrowers’ purposes.  If Borrowers request  Issuing Bank to issue a Letter of Credit for an affiliated or unaffiliated third party (an “Account Party”),  (i) such Account Party shall have no rights against Issuing Bank; (ii) Borrowers shall be responsible for  the application and obligations under this Agreement; and (iii) communications (including notices) related  to the respective Letter of Credit shall be among Issuing Bank and Borrowers.  Borrowers will examine  the copy of the Letter of Credit and any other documents sent by Issuing Bank in connection therewith  and shall promptly notify Issuing Bank (not later than three (3) Business Days following Borrowers’  receipt of documents from Issuing Bank) of any non-compliance with Borrowers’ instructions and of any  discrepancy in any document under any presentment or other irregularity.  Borrowers understand and  agree that Issuing Bank is not required to extend the expiration date of any Letter of Credit for any reason.  With respect to any Letter of Credit containing an “automatic amendment” to extend the expiration date  of such Letter of Credit, Issuing Bank, in its sole and absolute discretion, may give notice of non- extension of such Letter of Credit and, if Borrowers do not at any time want the then current expiration  date of such Letter of Credit to be extended, Borrowers will so notify Agent and Issuing Bank at least 30  calendar days before Issuing Bank is required to notify the beneficiary of such Letter of Credit or any  advising bank of such non-extension pursuant to the terms of such Letter of Credit (or such shorter period  as the Issuing Bank may agree in writing in its sole discretion).  





 






   -71-      (i) Borrowers’ reimbursement and payment obligations under this Section 2.11 are  absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of  this Agreement under any and all circumstances whatsoever, including:  (i) any lack of validity, enforceability or legal effect of any Letter of Credit,  any Issuer Document, this Agreement, or any Loan Document, or any term or provision therein or herein;  (ii) payment against presentation of any draft, demand or claim for payment  under any Drawing Document that does not comply in whole or in part with the terms of the applicable  Letter of Credit or which proves to be fraudulent, forged or invalid in any respect or any statement therein  being untrue or inaccurate in any respect, or which is signed, issued or presented by a Person or a  transferee of such Person purporting to be a successor or transferee of the beneficiary of such Letter of  Credit;  (iii) Issuing Bank or any of its branches or Affiliates being the beneficiary of  any Letter of Credit;  (iv) Issuing Bank or any correspondent honoring a drawing against a  Drawing Document up to the amount available under any Letter of Credit even if such Drawing  Document claims an amount in excess of the amount available under the Letter of Credit;  (v) the existence of any claim, set-off, defense or other right that any Loan  Party or any of its Subsidiaries may have at any time against any beneficiary or transferee beneficiary,  any assignee of proceeds, Issuing Bank or any other Person;  (vi) Issuing Bank or any correspondent honoring a drawing upon receipt of  an electronic presentation under a Letter of Credit requiring the same, regardless of whether the original  Drawing Documents arrive at Issuing Bank’s counters or are different from the electronic presentation;   (vii) any other event, circumstance or conduct whatsoever, whether or not  similar to any of the foregoing that might, but for this Section 2.11(i), constitute a legal or equitable  defense to or discharge of, or provide a right of set-off against, any Borrower’s or any of its Subsidiaries’  reimbursement and other payment obligations and liabilities, arising under, or in connection with, any  Letter of Credit, whether against Issuing Bank, the beneficiary or any other Person; or  (viii) the fact that any Default or Event of Default shall have occurred and be  continuing;  provided, that subject to Section 2.11(g) above, the foregoing shall not release Issuing Bank from such  liability to Borrowers as may be finally determined in a final, non-appealable judgment of a court of  competent jurisdiction against Issuing Bank following reimbursement or payment of the obligations and  liabilities, including reimbursement and other payment obligations, of Borrowers to Issuing Bank arising  under, or in connection with, this Section 2.11 or any Letter of Credit.  (j) Without limiting any other provision of this Agreement, Issuing Bank and each  other Letter of Credit Related Person (if applicable) shall not be responsible to Borrowers for, and Issuing  Bank’s rights and remedies against Borrowers and the obligation of Borrowers to reimburse Issuing Bank  for each drawing under each Letter of Credit shall not be impaired by:  





 






   -72-      (i) honor of a presentation under any Letter of Credit that on its face  substantially complies with the terms and conditions of such Letter of Credit, even if the Letter of Credit  requires strict compliance by the beneficiary;  (ii) honor of a presentation of any Drawing Document that appears on its  face to have been signed, presented or issued (A) by any purported successor or transferee of any  beneficiary or other Person required to sign, present or issue such Drawing Document or (B) under a new  name of the beneficiary;  (iii) acceptance as a draft of any written or electronic demand or request for  payment under a Letter of Credit, even if nonnegotiable or not in the form of a draft or notwithstanding  any requirement that such draft, demand or request bear any or adequate reference to the Letter of Credit;  (iv) the identity or authority of any presenter or signer of any Drawing  Document or the form, accuracy, genuineness or legal effect of any Drawing Document (other than  Issuing Bank’s determination that such Drawing Document appears on its face substantially to comply  with the terms and conditions of the Letter of Credit);  (v) acting upon any instruction or request relative to a Letter of Credit or  requested Letter of Credit that Issuing Bank in good faith believes to have been given by a Person  authorized to give such instruction or request;  (vi) any errors, omissions, interruptions or delays in transmission or delivery  of any message, advice or document (regardless of how sent or transmitted) or for errors in interpretation  of technical terms or in translation or any delay in giving or failing to give notice to any Borrower;  (vii) any acts, omissions or fraud by, or the insolvency of, any beneficiary,  any nominated person or entity or any other Person or any breach of contract between any beneficiary and  any Borrower or any of the parties to the underlying transaction to which the Letter of Credit relates;  (viii) assertion or waiver of any provision of the ISP or UCP that primarily  benefits an issuer of a letter of credit, including any requirement that any Drawing Document be  presented to it at a particular hour or place;  (ix) payment to any presenting bank (designated or permitted by the terms of  the applicable Letter of Credit) claiming that it rightfully honored or is entitled to reimbursement or  indemnity under Standard Letter of Credit Practice applicable to it;  (x) acting or failing to act as required or permitted under Standard Letter of  Credit Practice applicable to where Issuing Bank has issued, confirmed, advised or negotiated such Letter  of Credit, as the case may be;  (xi) honor of a presentation after the expiration date of any Letter of Credit  notwithstanding that a presentation was made prior to such expiration date and dishonored by Issuing  Bank if subsequently Issuing Bank or any court or other finder of fact determines such presentation  should have been honored;  (xii) dishonor of any presentation that does not strictly comply or that is  fraudulent, forged or otherwise not entitled to honor; or  





 






   -73-      (xiii) honor of a presentation that is subsequently determined by Issuing Bank  to have been made in violation of international, federal, state or local restrictions on the transaction of  business with certain prohibited Persons.  (k) Borrowers shall pay immediately upon demand to Agent for the account of  Issuing Bank as non-refundable fees, commissions, and charges (it being acknowledged and agreed that  any charging of such fees, commissions, and charges to the Loan Account pursuant to the provisions of  Section 2.6(d) shall be deemed to constitute a demand for payment thereof for the purposes of this Section  2.11(k)):  (i) a fronting fee which shall be imposed by Issuing Bank equal to  0.125% per annum times the  average amount of the Letter of Credit Usage during the immediately preceding month (or portion  thereof), plus (ii) any and all other customary commissions, fees and charges then in effect imposed by,  and any and all expenses incurred by, Issuing Bank, or by any adviser, confirming institution or entity or  other nominated person, relating to Letters of Credit, at the time of issuance of any Letter of Credit and  upon the occurrence of any other activity with respect to any Letter of Credit (including transfers,  assignments of proceeds, amendments, drawings, extensions or cancellations).  (l) If by reason of (x) any Change in Law, or (y) compliance by Issuing Bank or any  other member of the Lender Group with any direction, request, or requirement (irrespective of whether  having the force of law) of any Governmental Authority or monetary authority including, Regulation D of  the Board of Governors as from time to time in effect (and any successor thereto):  (i) any reserve, deposit, or similar requirement is or shall be imposed or  modified in respect of any Letter of Credit issued or caused to be issued hereunder or hereby, or any  Loans or obligations to make Loans hereunder or hereby, or  (ii) there shall be imposed on Issuing Bank or any other member of the  Lender Group any other condition regarding any Letter of Credit, Loans, or obligations to make Loans  hereunder,  and the result of the foregoing is to increase, directly or indirectly, the cost to Issuing Bank or any other  member of the Lender Group of issuing, making, participating in, or maintaining any Letter of Credit or to  reduce the amount receivable in respect thereof, then, and in any such case, Agent may, at any time within  a reasonable period after the additional cost is incurred or the amount received is reduced, notify Borrowers,  and Borrowers shall pay within 30 days after demand therefor, such amounts as Agent may specify to be  necessary to compensate Issuing Bank or any other member of the Lender Group for such additional cost  or reduced receipt, together with interest on such amount from the date of such demand until payment in  full thereof at the rate then applicable to Revolving Loans hereunder; provided, that (A) Borrowers shall  not be required to provide any compensation pursuant to this Section 2.11(l) for any such amounts incurred  more than 180 days prior to the date on which the demand for payment of such amounts is first made to  Borrowers, and (B) if an event or circumstance giving rise to such amounts is retroactive, then the 180-day  period referred to above shall be extended to include the period of retroactive effect thereof.  The  determination by Agent of any amount due pursuant to this Section 2.11(l), as set forth in a certificate  setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable  error, be final and conclusive and binding on all of the parties hereto.  (m) Each standby Letter of Credit shall expire not later than the date that is 12  months after the date of the issuance of such Letter of Credit; provided, that any standby Letter of Credit  may provide for the automatic extension thereof for any number of additional periods each of up to one  year in duration; provided further, that with respect to any Letter of Credit which extends beyond the  





 






   -74-      Maturity Date, Letter of Credit Collateralization shall be provided therefor on or before the date that is  five Business Days prior to the Maturity Date.  Each commercial Letter of Credit shall expire on the  earlier of (i) 120 days after the date of the issuance of such commercial Letter of Credit and (ii) five  Business Days prior to the Maturity Date.  (n) If (i) any Event of Default shall occur and be continuing, or (ii) Availability shall  at any time be less than zero, then on the Business Day following the date when Administrative Borrower  receives notice from Agent or the Required Lenders (or, if the maturity of the Obligations has been  accelerated, Revolving Lenders with Letter of Credit Exposure representing greater than 50% of the total  Letter of Credit Exposure) demanding Letter of Credit Collateralization pursuant to this Section 2.11(n)  upon such demand, Borrowers shall provide Letter of Credit Collateralization with respect to the then  existing Letter of Credit Usage.  If Borrowers fail to provide Letter of Credit Collateralization as required  by this Section 2.11(n), the Revolving Lenders may (and, upon direction of Agent, shall) advance, as  Revolving Loans the amount of the cash collateral required pursuant to the Letter of Credit  Collateralization provision so that the then existing Letter of Credit Usage is cash collateralized in  accordance with the Letter of Credit Collateralization provision (whether or not the Revolver  Commitments have terminated, an Overadvance exists or the conditions in Section 3 are satisfied).  (o) Unless otherwise expressly agreed by Issuing Bank and Borrowers when a Letter  of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of  the UCP shall apply to each commercial Letter of Credit.  (p) Issuing Bank shall be deemed to have acted with due diligence and reasonable  care if Issuing Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance  with this Agreement.   (q) In the event of a direct conflict between the provisions of this Section 2.11 and  any provision contained in any Issuer Document, it is the intention of the parties hereto that such  provisions be read together and construed, to the fullest extent possible, to be in concert with each other.   In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and  provisions of this Section 2.11 shall control and govern.  (r) The provisions of this Section 2.11 shall survive the termination of this  Agreement and the repayment in full of the Obligations with respect to any Letters of Credit that remain  outstanding.  (s) At Borrowers’ costs and expense, Borrowers shall execute and deliver to Issuing  Bank such additional certificates, instruments or documents and take such additional action as may be  reasonably requested by Issuing Bank to enable Issuing Bank to issue any Letter of Credit pursuant to this  Agreement and related Issuer Document, to protect, exercise or enforce Issuing Banks’ rights and  interests under this Agreement or to give effect to the terms and provisions of this Agreement or any  Issuer Document.  Each Borrower irrevocably appoints Issuing Bank as its attorney-in-fact and authorizes  Issuing Bank, without notice to Borrowers, to execute and deliver ancillary documents and letters  customary in the letter of credit business that may include but are not limited to advisements, indemnities,  checks, bills of exchange and issuance documents.  The power of attorney granted by the Borrowers is  limited solely to such actions related to the issuance, confirmation or amendment of any Letter of Credit  and to ancillary documents or letters customary in the letter of credit business.  This appointment is  coupled with an interest.  





 






   -75-      2.12 Special Provisions Applicable to SOFR.  (a) Illegality; Market Conditions.  Notwithstanding anything to the contrary  contained herein, subject to the provisions set forth in Section 2.12(d) below, if (a) any Change in Law  has made it unlawful, or any Governmental Authority has asserted that it is unlawful, for Lender to make  or maintain a SOFR Loan or to maintain the Commitment with respect to a SOFR Loan, or to determine  or charge interest rates based on Daily Simple SOFR or SOFR or (b) Agent determines in good faith  (which determination shall, absent manifest error, be final and conclusive and binding upon all parties  hereto) that Daily Simple SOFR cannot be determined pursuant to the definition thereof other than as a  result of a Benchmark Transition Event, then Agent shall give notice thereof to a Borrowers and may (A)  declare that SOFR Loans will not thereafter be made by Agent and the Lenders, such that any request for  a SOFR Loan shall be deemed to be a request for a Base Rate Loan unless Agent’s declaration has been  withdrawn (and it shall be withdrawn promptly upon the cessation of the circumstances described in  clause (a) or (b) above) and (B) require that all outstanding SOFR Loans made by Agent and the Lenders  be converted to Base Rate Loans immediately, in which event all outstanding SOFR Loans shall be so  converted and all Obligations (except for the undrawn amount of any issued and outstanding Letters of  Credit) shall bear interest at the Base Rate in effect from time to time, plus the Base Rate Margin.  (b) Increased Costs.  If any Change in Law shall: (a) 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, Agent or any  Lender; (b) subject Agent or any Lender to any Taxes (other than (i) Indemnified Taxes, (ii) Taxes  described in clauses (ii) through (iv) of the definition of Excluded Taxes, and (iii) Connection Income  Taxes), with respect to any Loan Document or any SOFR Loan made by it; or (c) impose on Agent or any  Lender any other condition, cost or expense affecting any Loan Document or SOFR Loans, and the result  of any of the foregoing shall be to increase the cost to Lender of making or maintaining any SOFR Loan  (or of maintaining its obligation to make any such Revolving Loan), or to increase the cost to Agent or  any Lender or to reduce the amount of any sum received or receivable by Agent or such Lender hereunder  (whether of principal, interest or any other amount) then, upon request of Agent, each Borrower will pay  to Agent, for the benefit of the Lenders, such additional amount or amounts as will compensate Agent and  the Lenders, as the case may be, for such additional costs incurred or reduction suffered.  (c) Benchmark Replacement Setting.    (i) Notwithstanding anything to the contrary herein or in any other Loan  Document, upon the occurrence of a Benchmark Transition Event, Agent and the Borrower may amend  this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such  amendment will become effective at 5:00 p.m. on the fifth (5th) Business Day after Agent has posted such  proposed amendment to all affected Lenders and Administrative Borrower so long as Agent has not  received, by such time, written notice of objection to such amendment from Lenders comprising the  Required Lenders.    (ii) Benchmark Replacement Conforming Changes.  In connection with  the implementation of a Benchmark Replacement, Agent will have the right to make Benchmark  Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary  herein or in any other Loan Document, any amendments implementing such Benchmark Replacement  Conforming Changes will become effective without any further action or consent of any other party to  this Agreement.  





 






   -76-      (iii) Notices; Standard for Decisions and Determinations.  Agent will  promptly notify Administrative Borrower and Lenders of (a) the implementation of any Benchmark  Replacement and (b) the effectiveness of any Benchmark Replacement Conforming Changes. Any  determination, decision or election that may be made by Agent or Lenders pursuant to this Section 2.12,  including any determination with respect to a tenor, rate or adjustment or of the occurrence or non- occurrence of an event, circumstance or date and any decision to take or refrain from taking any action,  will be conclusive and binding absent manifest error and may be made in Agent’s sole discretion and  without consent from any Loan Party, except, in each case, as expressly required pursuant to this Section  2.12.  (iv) Benchmark Unavailability Period.  Upon Administrative Borrower’s  receipt of notice of the commencement of a Benchmark Unavailability Period, Agent may (i) declare that  SOFR Loans will not thereafter be made by Agent or any Lender, such that any request for a SOFR Loan  from Agent or any Lender shall be deemed to be a request for a Loan bearing interest at the Base Rate and  (ii) require that all outstanding SOFR Loans made by Agent be converted to a Loan bearing interest at the  Base Rate immediately, in which event all outstanding SOFR Loans shall be so converted and shall bear  interest at the Base Rate in effect from time to time, plus the Base Rate Margin. The Base Rate in effect  from time to time plus the Base Rate Margin shall replace the then-current Benchmark for any  determination of interest hereunder or under any other Loan Document during a Benchmark  Unavailability Period.  (d) No Requirement of Matched Funding.  Anything to the contrary contained  herein notwithstanding, neither Agent, nor any Lender, nor any of their Participants, is required actually  to match fund any Obligation as to which interest accrues at Daily Simple SOFR.   2.13 Capital Requirements.  (a) If, after the date hereof, Issuing Bank or any Lender determines that (i) any  Change in Law regarding capital, liquidity or reserve requirements for banks or bank holding companies,  or (ii) compliance by Issuing Bank or such Lender, or their respective parent bank holding companies,  with any guideline, request or directive of any Governmental Authority regarding capital adequacy or  liquidity requirements (whether or not having the force of law), has the effect of reducing the return on  Issuing Bank’s, such Lender’s, or such holding companies’ capital or liquidity as a consequence of  Issuing Bank’s or such Lender’s commitments, Loans, participations or other obligations hereunder to a  level below that which Issuing Bank, such Lender, or such holding companies could have achieved but  for such Change in Law or compliance (taking into consideration Issuing Bank’s, such Lender’s, or such  holding companies’ then existing policies with respect to capital adequacy or liquidity requirements and  assuming the full utilization of such entity’s capital) by any amount deemed by Issuing Bank or such  Lender to be material, then Issuing Bank or such Lender may notify Borrowers and Agent thereof in  writing.  Following receipt of such notice, Borrowers agree to pay Issuing Bank or such Lender on  demand the amount of such reduction of return of capital as and when such reduction is determined,  payable within 30 days after presentation by Issuing Bank or such Lender of a statement in the amount  and setting forth in reasonable detail Issuing Bank’s or such Lender’s calculation thereof and the  assumptions upon which such calculation was based (which statement shall be deemed true and correct  absent manifest error).  In determining such amount, Issuing Bank or such Lender may use any reasonable  averaging and attribution methods.  Failure or delay on the part of Issuing Bank or any Lender to demand  compensation pursuant to this Section shall not constitute a waiver of Issuing Bank’s or such Lender’s  right to demand such compensation; provided, that Borrowers shall not be required to compensate Issuing  Bank or a Lender pursuant to this Section for any reductions in return incurred as a result of a Change in  





 






   -77-      Law, guideline, request or directive occurring or issued more than 180 days prior to the date that Issuing  Bank or such Lender notifies Borrowers of such Change in Law giving rise to such reductions and of such  Lender’s intention to claim compensation therefor; provided further, that if such claim arises by reason of  the Change in Law that is retroactive, then the 180-day period referred to above shall be extended to  include the period of retroactive effect thereof.  (b) If Issuing Bank or any Lender requests additional or increased costs referred to in  Sections 2.11(l) or 2.12 or amounts under Section 2.13(a) or sends a notice under Section 2.12 regarding  changed circumstances (such Issuing Bank or Lender, an “Affected Lender”), then, at the request of  Administrative Borrower, such Affected Lender shall use reasonable efforts to promptly designate a  different one of its lending offices or to assign its rights and obligations hereunder to another of its offices  or branches, if (i) in the reasonable judgment of such Affected Lender, such designation or assignment  would eliminate or reduce amounts payable pursuant to Section 2.11(l), Section 2.12, or Section 2.13(a),  as applicable, or would eliminate the illegality or impracticality of funding or maintaining SOFR Loans,  and (ii) in the reasonable judgment of such Affected Lender, such designation or assignment would not  subject it to any material unreimbursed cost or expense and would not otherwise be materially  disadvantageous to it.  Borrowers agree to pay all reasonable out-of-pocket costs and expenses incurred  by such Affected Lender in connection with any such designation or assignment.  If, after such reasonable  efforts, such Affected Lender does not so designate a different one of its lending offices or assign its  rights to another of its offices or branches so as to eliminate Borrowers’ obligation to pay any future  amounts to such Affected Lender pursuant to Section 2.11(l), Section 2.12, or Section 2.13(a), as  applicable, or to enable Borrowers to obtain SOFR Loans, then Borrowers (without prejudice to any  amounts then due to such Affected Lender under Section 2.11(l), Section 2.12, or Section 2.13(a), as  applicable) may, unless prior to the effective date of any such assignment the Affected Lender withdraws  its request for such additional amounts under Section 2.11(l), Section 2.12, or Section 2.13(a), as  applicable, or indicates that it is no longer unlawful or impractical to fund or maintain SOFR Loans, may  designate a different Issuing Bank or substitute a Lender or prospective Lender, in each case, reasonably  acceptable to Agent to purchase the Obligations (other than Bank Product Obligations) owed to such  Affected Lender and such Affected Lender’s commitments hereunder (a “Replacement Lender”), and if  such Replacement Lender agrees to such purchase, such Affected Lender shall assign to the Replacement  Lender its Obligations and commitments, and upon such purchase by the Replacement Lender, which  such Replacement Lender shall be deemed to be “Issuing Bank” or a “Lender” (as the case may be) for  purposes of this Agreement and such Affected Lender shall cease to be “Issuing Bank” or a “Lender” (as  the case may be) for purposes of this Agreement.  (c) Notwithstanding anything herein to the contrary, the protection of Sections  2.11(l), 2.12(c), and 2.13 shall be available to Issuing Bank and each Lender (as applicable) regardless of  any possible contention of the invalidity or inapplicability of the law, rule, regulation, judicial ruling,  judgment, guideline, treaty or other change or condition which shall have occurred or been imposed, so  long as it shall be customary for similarly situated issuing banks or lenders affected thereby to comply  therewith.  Notwithstanding any other provision herein, neither Issuing Bank nor any Lender shall  demand compensation pursuant to this Section 2.13 if it shall not at the time be the general policy or  practice of Issuing Bank or such Lender (as the case may be) to demand such compensation in similar  circumstances under comparable provisions of other credit agreements, if any.  2.14 Incremental Facilities.  (a) At any time during the period from and after the Closing Date, at the option of  Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and  





 






   -78-      the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of  the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase  Amount (each such increase, an “Increase”).  Without limiting the foregoing, Agent shall, upon  Administrative Borrower’s request, invite each Lender to increase its Revolver Commitments (it being  understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a  proposed Increase at the interest margin proposed by Borrowers, and if sufficient Lenders do not agree to  increase their Revolver Commitments in connection with such proposed Increase, then Agent or  Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to  become a Lender in connection with a proposed Increase.  Any Increase shall be in an amount of at least  $5,000,000 and integral multiples of $1,000,000 in excess thereof.  In no event may the Revolver  Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more  than four (4) occasions in the aggregate for all such Increases.  Additionally, for the avoidance of doubt, it  is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver  Commitments exceed $15,000,000.  (b) Without limiting the foregoing, each of the following shall be conditions  precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount:  (i) Agent or Borrowers have obtained the commitment of one or more  Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the  applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a  joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably  satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party, it  being understood that no Lender is required to give such consent and such consent shall be provided in  the sole discretion of each such Lender;  (ii) each of the conditions precedent set forth in Section 3.2 are satisfied,  (iii) in connection with any Increase, if any Loan Party or any of its  Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form  U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the  Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable  Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board  of Governors,  (iv) Borrowers have delivered to Agent updated pro forma Projections (after  giving effect to the applicable Increase) for the Loan Parties and their Restricted Subsidiaries evidencing  compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis)  immediately following the proposed date of the applicable Increase (calculated as if a Covenant Testing  Period was in effect during the entire twelve month period), and  (v) Unless otherwise agreed by Agent, the interest rate margins with respect  to the Revolving Loans to be made pursuant to the increased Revolver Commitments shall be the same as  the interest rate margin applicable to all other Revolving Loans hereunder immediately prior to the  applicable date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver  Amount, the “Increase Date”).  Any Increase Joinder may, with the consent of Agent, Borrowers and the  Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this  Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section  2.14  





 






   -79-      (c) Unless otherwise specifically provided herein, (i) all references in this  Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context  otherwise requires, to include Revolving Loans made pursuant to the increased Revolver Commitments  and Maximum Revolver Amount pursuant to this Section 2.14.  (d) Each of the Lenders having a Revolver Commitment prior to the Increase Date  (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional  Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post- Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal  amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on  such Increase Date as shall be necessary in order that, after giving effect to all such assignments and  purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre- Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata  Share after giving effect to such increased Revolver Commitments.  (e) The Revolving Loans, Revolver Commitments, and Maximum Revolver Amount  established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and  Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement  and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from  any guarantees and the security interests created by the Loan Documents.  Borrowers shall take any  actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests  granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect  to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.  (f) [Reserved].  2.15 Joint and Several Liability of Borrowers.  (a) Each Borrower is accepting joint and several liability hereunder and under the  other Loan Documents in consideration of the financial accommodations to be provided by the Lender  Group under this Agreement, for the mutual benefit, directly and indirectly, of each Borrower and in  consideration of the undertakings of the other Borrowers to accept joint and several liability for the  Obligations.  (b) Each Borrower, jointly and severally, hereby irrevocably and unconditionally  accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers,  with respect to the payment and performance of all of the Obligations (including any Obligations arising  under this Section 2.15), it being the intention of the parties hereto that all the Obligations shall be the  joint and several obligations of each Borrower without preferences or distinction among them.   Accordingly, each Borrower hereby waives any and all suretyship defenses that would otherwise be  available to such Borrower under applicable law.   (c) If and to the extent that any Borrower shall fail to make any payment with  respect to any of the Obligations as and when due, whether upon maturity, acceleration, or otherwise, or  to perform any of the Obligations in accordance with the terms thereof, then in each such event the other  Borrowers will make such payment with respect to, or perform, such Obligations until such time as all of  the Obligations are paid in full, and without the need for demand, protest, or any other notice or formality.  





 






   -80-      (d) The Obligations of each Borrower under the provisions of this Section 2.15  constitute the absolute and unconditional, full recourse Obligations of each Borrower enforceable against  each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or  enforceability of the provisions of this Agreement (other than this Section 2.15(d)) or any other  circumstances whatsoever.  (e) Without limiting the generality of the foregoing and except as otherwise  expressly provided in this Agreement, each Borrower hereby waives presentments, demands for  performance, protests and notices, including notices of acceptance of its joint and several liability, notice  of any Revolving Loans or any Letters of Credit issued under or pursuant to this Agreement, notice of the  occurrence of any Default, Event of Default, notices of nonperformance, notices of protest, notices of  dishonor, notices of acceptance of this Agreement, notices of the existence, creation, or incurring of new  or additional Obligations or other financial accommodations or of any demand for any payment under this  Agreement, notice of any action at any time taken or omitted by Agent or Lenders under or in respect of  any of the Obligations, any right to proceed against any other Borrower or any other Person, to proceed  against or exhaust any security held from any other Borrower or any other Person, to protect, secure,  perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take  any action against any other Borrower, any other Person, or any collateral, to pursue any other remedy in  any member of the Lender Group’s or any Bank Product Provider’s power whatsoever, any requirement  of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands,  notices and other formalities of every kind in connection with this Agreement (except as otherwise  provided in this Agreement), any right to assert against any member of the Lender Group or any Bank  Product Provider, any defense (legal or equitable), set-off, counterclaim, or claim which each Borrower  may now or at any time hereafter have against any other Borrower or any other party liable to any  member of the Lender Group or any Bank Product Provider, any defense, set-off, counterclaim, or claim,  of any kind or nature, arising directly or indirectly from the present or future lack of perfection,  sufficiency, validity, or enforceability of the Obligations or any security therefor, and any right or defense  arising by reason of any claim or defense based upon an election of remedies by any member of the  Lender Group or any Bank Product Provider including any defense based upon an impairment or  elimination of such Borrower’s rights of subrogation, reimbursement, contribution, or indemnity of such  Borrower against any other Borrower.  Without limiting the generality of the foregoing, each Borrower  hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any  of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial  payment thereon, any waiver, consent or other action or acquiescence by Agent or Lenders at any time or  times in respect of any default by any Borrower in the performance or satisfaction of any term, covenant,  condition or provision of this Agreement, any and all other indulgences whatsoever by Agent or Lenders  in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at  any time or times, of any security for any of the Obligations or the addition, substitution or release, in  whole or in part, of any Borrower.  Without limiting the generality of the foregoing, each Borrower  assents to any other action or delay in acting or failure to act on the part of any Agent or Lender with  respect to the failure by any Borrower to comply with any of its respective Obligations, including any  failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable  laws or regulations thereunder, which might, but for the provisions of this Section 2.15 afford grounds for  terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under  this Section 2.15, it being the intention of each Borrower that, so long as any of the Obligations hereunder  remain unsatisfied, the Obligations of each Borrower under this Section 2.15 shall not be discharged  except by performance and then only to the extent of such performance.  The Obligations of each  Borrower under this Section 2.15 shall not be diminished or rendered unenforceable by any winding up,  reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other  





 






   -81-      Borrower or any Agent or Lender.  Any payment by any Borrower or other circumstance which operates  to toll any statute of limitations as to any Borrower shall operate to toll the statute of limitations as to each  of the Borrowers.  Each of the Borrowers waives any defense based on or arising out of any defense of  any Borrower or any other Person, other than payment of the Obligations to the extent of such payment,  based on or arising out of the disability of any Borrower or any other Person, or the validity, legality, or  unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of  the liability of any Borrower other than payment of the Obligations to the extent of such payment.  In  accordance with the terms of the Loan Documents, Agent may, at the election of the Required Lenders,  foreclose upon any Collateral held by Agent by one or more judicial or nonjudicial sales or other  dispositions, whether or not every aspect of any such sale is commercially reasonable or otherwise fails to  comply with applicable law or may exercise any other right or remedy Agent, any other member of the  Lender Group, or any Bank Product Provider may have against any Borrower or any other Person, or any  security, in each case, without affecting or impairing in any way the liability of any of the Borrowers  hereunder except to the extent the Obligations have been paid.    (f) Each Borrower represents and warrants to Agent and Lenders that such Borrower  is currently informed of the financial condition of Borrowers and of all other circumstances which a  diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations.  Each  Borrower further represents and warrants to Agent and Lenders that such Borrower has read and  understands the terms and conditions of the Loan Documents.  Each Borrower hereby covenants that such  Borrower will continue to keep informed of Borrowers’ financial condition and of all other circumstances  which bear upon the risk of nonpayment or nonperformance of the Obligations.  (g) The provisions of this Section 2.15 are made for the benefit of Agent, each  member of the Lender Group, each Bank Product Provider, and their respective successors and assigns,  and may be enforced by it or them from time to time against any or all Borrowers as often as occasion  therefor may arise and without requirement on the part of Agent, any member of the Lender Group, any  Bank Product Provider, or any of their successors or assigns first to marshal any of its or their claims or to  exercise any of its or their rights against any Borrower or to exhaust any remedies available to it or them  against any Borrower or to resort to any other source or means of obtaining payment of any of the  Obligations hereunder or to elect any other remedy.  The provisions of this Section 2.15 shall remain in  effect until all of the Obligations shall have been paid in full or otherwise fully satisfied.  If at any time,  any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must  otherwise be restored or returned by Agent or any Lender upon the insolvency, bankruptcy or  reorganization of any Borrower, or otherwise, the provisions of this Section 2.15 will forthwith be  reinstated in effect, as though such payment had not been made.  (h) Each Borrower hereby agrees that it will not enforce any of its rights that arise  from the existence, payment, performance or enforcement of the provisions of this Section 2.15,   including rights of subrogation, reimbursement, exoneration, contribution or indemnification and any  right to participate in any claim or remedy of Agent, any other member of the Lender Group, or any Bank  Product Provider against any Borrower, whether or not such claim, remedy or right arises in equity or  under contract, statute or common law, including the right to take or receive from any Borrower, directly  or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on  account of such claim, remedy or right, unless and until such time as all of the Obligations have been paid  in full in cash.  Any claim which any Borrower may have against any other Borrower with respect to any  payments to any Agent or any member of the Lender Group hereunder or under any of the Bank Product  Agreements are hereby expressly made subordinate and junior in right of payment, without limitation as  to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of  





 






   -82-      the Obligations and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization  or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its  assets, whether voluntary or involuntary, all such Obligations shall be paid in full in cash before any  payment or distribution of any character, whether in cash, securities or other property, shall be made to  any other Borrower therefor.  If any amount shall be paid to any Borrower in violation of the immediately  preceding sentence, such amount shall be held in trust for the benefit of Agent, for the benefit of the  Lender Group and the Bank Product Providers, and shall forthwith be paid to Agent to be credited and  applied to the Obligations and all other amounts payable under this Agreement, whether matured or  unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any  Obligations or other amounts payable under this Agreement thereafter arising.  Notwithstanding anything  to the contrary contained in this Agreement, no Borrower may exercise any rights of subrogation,  contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek  recourse against or with respect to any property or asset of, any other Borrower (the “Foreclosed  Borrower”), including after payment in full of the Obligations, if all or any portion of the Obligations  have been satisfied in connection with an exercise of remedies in respect of the Equity Interests of such  Foreclosed Borrower whether pursuant to this Agreement or otherwise.  3. CONDITIONS; TERM OF AGREEMENT.  3.1 Conditions Precedent to the Initial Extension of Credit.  The obligation of each  Lender to make the initial extensions of credit provided for hereunder is subject to the fulfillment, to the  satisfaction of Agent and each Lender, of each of the conditions precedent set forth on Schedule 3.1 to  this Agreement (the making of such initial extensions of credit by a Lender being conclusively deemed to  be its satisfaction or waiver of the conditions precedent), except for clause (q) thereof.  Without limiting  the foregoing, in the event that the conditions set forth in clause (q) of Schedule 3.1 are not satisfied  within ninety (90) days of the Closing Date, then Agent may, by written notice to Borrowers, declare the  Commitments terminated, whereupon the Commitments shall immediately be terminated together with (i)  any obligation of any Revolving Lender to make Revolving Loans, (ii) the obligation of the Swing Lender  to make Swing Loans, and (iii) the obligation of Issuing Bank to issue Letters of Credit.      3.2 Conditions Precedent to all Extensions of Credit.  The obligation of the Lender Group  (or any member thereof) to make any Revolving Loans hereunder (or to extend any other credit  hereunder) at any time shall be subject to the following conditions precedent:  (a) the representations and warranties of each Loan Party or its Restricted  Subsidiaries contained in this Agreement or in the other Loan Documents shall be true and correct in all  material respects (except that such materiality qualifier shall not be applicable to any representations and  warranties that already are qualified or modified by materiality in the text thereof) on and as of the date of  such extension of credit, as though made on and as of such date (except to the extent that such  representations and warranties relate solely to an earlier date, in which case such representations and  warranties shall be true and correct in all material respects (except that such materiality qualifier shall not  be applicable to any representations and warranties that already are qualified or modified by materiality in  the text thereof) as of such earlier date); and  (b) no Default or Event of Default shall have occurred and be continuing on the date  of such extension of credit, nor shall either result from the making thereof.   3.3 Maturity.  The Commitments shall continue in full force and effect for a term ending on  the Maturity Date (unless terminated earlier in accordance with the terms hereof).  





 






   -83-      3.4 Effect of Maturity.  On the Maturity Date, all commitments of the Lender Group to  provide additional credit hereunder shall automatically be terminated and all of the Obligations (other  than Hedge Obligations) immediately shall become due and payable without notice or demand and  Borrowers shall be required to repay all of the Obligations (other than Hedge Obligations) in full.  No  termination of the obligations of the Lender Group (other than payment in full of the Obligations and  termination of the Commitments) shall relieve or discharge any Loan Party of its duties, obligations, or  covenants hereunder or under any other Loan Document and Agent’s Liens in the Collateral shall  continue to secure the Obligations and shall remain in effect until all Obligations have been paid in full.   When all of the Obligations have been paid in full, Agent will, at Borrowers’ sole expense, execute and  deliver any termination statements (or alternatively, authorize in writing Administrative Borrower or its  agents to file termination statements), lien releases, discharges of security interests, and other similar  discharge or release documents (and, if applicable, in recordable form) as are reasonably necessary to  release, as of record, Agent’s Liens and all notices of security interests and liens previously filed by  Agent.  3.5 Early Termination by Borrowers.  Borrowers have the option, at any time upon five (5)  Business Days prior written notice to Agent, to repay all of the Obligations in full without premium or  penalty and terminate the Commitments.  The foregoing notwithstanding, (a) Borrowers may rescind  termination notices relative to proposed payments in full of the Obligations with the proceeds of third  party Indebtedness or other liquidity transactions if the closing for such issuance, incurrence or other  transaction does not happen on or before the date of the proposed termination (in which case, a new  notice shall be required to be sent in connection with any subsequent termination), and (b) Borrowers may  extend the date of termination at any time with the consent of Agent (which consent shall not be  unreasonably withheld or delayed).  4. REPRESENTATIONS AND WARRANTIES.  In order to induce the Lender Group to enter into this Agreement, each of Parent and  Borrower makes the following representations and warranties to the Lender Group which shall be true,  correct, and complete, in all material respects (except that such materiality qualifier shall not be  applicable to any representations and warranties that already are qualified or modified by materiality in  the text thereof), as of the Closing Date, and shall be true, correct, and complete, in all material respects  (except that such materiality qualifier shall not be applicable to any representations and warranties that  already are qualified or modified by materiality in the text thereof), as of the date of the making of each  Revolving Loan (or other extension of credit) made thereafter, as though made on and as of the date of  such Revolving Loan (or other extension of credit) (except to the extent that such representations and  warranties relate solely to an earlier date, in which case such representations and warranties shall be true  and correct in all material respects (except that such materiality qualifier shall not be applicable to any  representations and warranties that already are qualified or modified by materiality in the text thereof) as  of such earlier date), and such representations and warranties shall survive the execution and delivery of  this Agreement:  4.1 Due Organization and Qualification; Subsidiaries.  (a) Each Loan Party and each of its Restricted Subsidiaries (i) is duly organized and  existing and in good standing under the laws of the jurisdiction of its organization, (ii) is qualified to do  business in any state where the failure to be so qualified could reasonably be expected to result in a  Material Adverse Effect, and (iii) has all requisite power and authority to own and operate its properties,  





 






   -84-      to carry on its business as now conducted and as proposed to be conducted, to enter into the Loan  Documents to which it is a party and to carry out the transactions contemplated thereby.  (b) Set forth on Schedule 4.1(b) to this Agreement (as such Schedule may be updated  from time to time by written notice from Administrative Borrower to Agent to reflect changes resulting  from transactions permitted under this Agreement) is a complete and accurate description of the  authorized Equity Interests of each Loan Party, by class, and, as of the Closing Date, a description of the  number of shares of each such class that are issued and outstanding.    (c) Set forth on Schedule 4.1(c) to this Agreement (as such Schedule may be updated  from time to time by written notice from Administrative Borrower to Agent to reflect changes resulting  from transactions permitted under this Agreement), is a complete and accurate list of the Loan Parties’  direct and indirect Subsidiaries, showing: (i) the number of shares of each class of common and preferred  Equity Interests authorized for each of such Subsidiaries, and (ii) the number and the percentage of the  outstanding shares of each such class owned directly or indirectly by Administrative Borrower.  All of the  outstanding Equity Interests of each such Restricted Subsidiary has been validly issued and is fully paid  and non-assessable.  (d) Except as set forth on Schedule 4.1(d) to this Agreement, there are no  subscriptions, options, warrants, or calls relating to any shares of any Loan Party’s or any of its Restricted  Subsidiaries’ Equity Interests, including any right of conversion or exchange under any outstanding  security or other instrument.  No Loan Party is subject to any obligation (contingent or otherwise) to  repurchase or otherwise acquire or retire any shares of its Equity Interests or any security convertible into  or exchangeable for any of its Equity Interests.  4.2 Due Authorization; No Conflict.  (a) As to each Loan Party, the execution, delivery, and performance by such Loan  Party of the Loan Documents to which it is a party have been duly authorized by all necessary action on  the part of such Loan Party.  (b) As to each Loan Party, the execution, delivery, and performance by such Loan  Party of the Loan Documents to which it is a party do not and will not (i) violate any material provision of  federal, state, or local law or regulation applicable to any Loan Party or its Restricted Subsidiaries, the  Governing Documents of any Loan Party or its Restricted Subsidiaries, or any order, judgment, or decree  of any court or other Governmental Authority binding on any Loan Party or its Restricted Subsidiaries,  (ii) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default  under any material agreement of any Loan Party or its Restricted Subsidiaries where any such conflict,  breach or default could individually or in the aggregate reasonably be expected to have a Material  Adverse Effect, (iii) result in or require the creation or imposition of any Lien of any nature whatsoever  upon any assets of any Loan Party, other than Permitted Liens, or (iv) require any approval of any holder  of Equity Interests of a Loan Party or any approval or consent of any Person under any material  agreement of any Loan Party, other than consents or approvals that have been obtained and that are still in  force and effect and except, in the case of material agreements, for consents or approvals, the failure to  obtain could not individually or in the aggregate reasonably be expected to cause a Material Adverse  Effect.  4.3 Governmental Consents.  The execution, delivery, and performance by each Loan Party  of the Loan Documents to which such Loan Party is a party and the consummation of the transactions  





 






   -85-      contemplated by the Loan Documents do not and will not require any registration with, consent, or  approval of, or notice to, or other action with or by, any Governmental Authority, other than registrations,  consents, approvals, notices, or other actions that have been obtained and that are still in force and effect  and except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to  Agent for filing or recordation, as of the Closing Date.  4.4 Binding Obligations; Perfected Liens.  (a) Each Loan Document has been duly executed and delivered by each Loan Party  that is a party thereto and is the legally valid and binding obligation of such Loan Party, enforceable  against such Loan Party in accordance with its respective terms, except as enforcement may be limited by  equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to  or limiting creditors’ rights generally.  (b) Agent’s Liens are validly created, perfected (other than (i) in respect of motor  vehicles that are subject to a certificate of title, (ii) money, (iii) letter-of-credit rights (other than  supporting obligations), (iv) commercial tort claims (other than those that, by the terms of the Guaranty  and Security Agreement, are required to be perfected), and (v) any Deposit Accounts and Securities  Accounts not subject to a Control Agreement as permitted by Section 7(k)(iv) of the Guaranty and  Security Agreement, and subject only to the filing of financing statements, in each case, in the appropriate  filing offices), and first priority Liens, subject only to Permitted Liens which are non-consensual  Permitted Liens, permitted purchase money Liens, or the interests of lessors under Capital Leases.  4.5 Title to Assets; No Encumbrances.  Each of the Loan Parties and its Restricted  Subsidiaries has (a) good, sufficient and legal title to (in the case of fee interests in Real Property), (b)  valid leasehold interests in (in the case of leasehold interests in real or personal property), and (c) good  and marketable title to (in the case of all other personal property), all of their respective assets reflected in  their most recent financial statements delivered pursuant to Section 5.1, in each case except for assets  disposed of since the date of such financial statements to the extent permitted hereby.  All of such assets  are free and clear of Liens except for Permitted Liens.  4.6 Litigation.    (a) There are no actions, suits, or proceedings pending or, to the knowledge of any  Borrower, after due inquiry, threatened in writing against a Loan Party or any of its Restricted  Subsidiaries that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of  the transactions contemplated hereby, or (b) either individually or in the aggregate could reasonably be  expected to have a Material Adverse Effect.  (b) Schedule 4.6(b) to this Agreement sets forth a complete and accurate description  of each of the actions, suits, or proceedings with asserted liabilities in excess of, or that could reasonably  be expected to result in liabilities in excess of, $1,000,000 that, as of the Closing Date, is pending or, to  the knowledge of any Borrower, after due inquiry, threatened in writing against a Loan Party or any of its  Subsidiaries.  4.7 Compliance with Laws.  No Loan Party nor any of its Restricted Subsidiaries (a) is in  violation of any applicable laws, rules, regulations, executive orders, or codes (including Environmental  Laws) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse  Effect, or (b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees,  





 






   -86-      rules or regulations of any court or any federal, state, municipal or other governmental department,  commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the  aggregate, could reasonably be expected to result in a Material Adverse Effect.  4.8 No Material Adverse Effect.  All historical financial statements relating to the Loan  Parties and their Restricted Subsidiaries that have been delivered by Borrowers to Agent have been  prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of  footnotes and being subject to year-end audit adjustments) and present fairly in all material respects, the  Loan Parties’ and their Restricted Subsidiaries’ consolidated financial condition as of the date thereof and  results of operations for the period then ended.  Since August 15, 2022, no event, circumstance, or change  has occurred that has or could reasonably be expected to result in a Material Adverse Effect.  4.9 Solvency.  (a) Each Loan Party is Solvent.  (b) No transfer of property is being made by any Loan Party and no obligation is  being incurred by any Loan Party in connection with the transactions contemplated by this Agreement or  the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of  such Loan Party.  4.10 Employee Benefits.  No Loan Party, none of their Restricted Subsidiaries, nor any of  their ERISA Affiliates maintains or contributes to any Benefit Plan.   4.11 Environmental Condition.  Except as set forth on Schedule 4.11 to this Agreement or as  otherwise could not reasonably be expected to have a Material Adverse Effect, (a) to each Borrower’s  knowledge, no Loan Party’s nor any of its Restricted Subsidiaries’ properties or assets has ever been used  by a Loan Party, its Restricted Subsidiaries, or by previous owners or operators in the disposal of, or to  produce, store, handle, treat, release, or transport, any Hazardous Materials, where such disposal,  production, storage, handling, treatment, release or transport was in violation, in any material respect, of  any applicable Environmental Law, (b) to each Borrower’s knowledge, after due inquiry, no Loan Party’s  nor any of its Restricted Subsidiaries’ properties or assets has ever been designated or identified in any  manner pursuant to any environmental protection statute as a Hazardous Materials disposal site, (c) no  Loan Party nor any of its Restricted Subsidiaries has received notice that a Lien arising under any  Environmental Law has attached to any revenues or to any Real Property owned or operated by a Loan  Party or its Restricted Subsidiaries, and (d) no Loan Party nor any of its Restricted Subsidiaries nor any of  their respective facilities or operations is subject to any outstanding written order, consent decree, or  settlement agreement with any Person relating to any Environmental Law or Environmental Liability that,  individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.  4.12 Complete Disclosure.  All factual information taken as a whole (other than forward- looking information and projections and information of a general economic nature and general  information about the industry of any Loan Party or its Restricted Subsidiaries) furnished by or on behalf  of a Loan Party or its Restricted Subsidiaries in writing to Agent or any Lender (including all information  contained in the Schedules hereto or in the other Loan Documents) for purposes of or in connection with  this Agreement or the other Loan Documents, and all other such factual information taken as a whole  (other than forward-looking information and projections and information of a general economic nature  and general information about the industry of any Loan Party or its Restricted Subsidiaries) hereafter  furnished by or on behalf of a Loan Party or its Restricted Subsidiaries in writing to Agent or any Lender  





 






   -87-      will be, true and accurate, in all material respects, on the date as of which such information is dated or  certified and not incomplete by omitting to state any fact necessary to make such information (taken as a  whole) not misleading in any material respect at such time in light of the circumstances under which such  information was provided.  The Projections delivered to Agent on October 28, 2022 represent, and as of  the date on which any other Projections are delivered to Agent, such additional Projections represent,  Borrowers’ good faith estimate, on the date such Projections are delivered, of the Loan Parties’ and their  Restricted Subsidiaries’ future performance for the periods covered thereby based upon assumptions  believed by Borrowers to be reasonable at the time of the delivery thereof to Agent (it being understood  that such Projections are subject to significant uncertainties and contingencies, many of which are beyond  the control of the Loan Parties and their Restricted Subsidiaries, and no assurances can be given that such  Projections will be realized, and although reflecting Borrowers’ good faith estimate, projections or  forecasts based on methods and assumptions which Borrowers believed to be reasonable at the time such  Projections were prepared, are not to be viewed as facts, and that actual results during the period or  periods covered by the Projections may differ materially from projected or estimated results). As of the  Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all  respects.  4.13 Patriot Act.  To the extent applicable, each Loan Party is in compliance, in all material  respects, with the (a) Trading with the Enemy Act, as amended, and each of the foreign assets control  regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and  any other enabling legislation or executive order relating thereto, and (b) Uniting and Strengthening  America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act  of 2001, as amended) (the “Patriot Act”).  4.14 Indebtedness.  Set forth on Schedule 4.14 to this Agreement is a true and complete list of  all Indebtedness of each Loan Party and each of its Restricted Subsidiaries outstanding immediately prior  to the Closing Date (other than unsecured Permitted Indebtedness outstanding immediately prior to the  Closing Date that is to remain outstanding immediately after giving effect to the closing hereunder on the  Closing Date and such Schedule accurately sets forth the aggregate principal amount of such Indebtedness  as of the Closing Date.  4.15 Payment of Taxes.  Except as otherwise permitted under Section 5.5, all material Tax  returns and reports of each Loan Party and its Subsidiaries required to be filed by any of them have been  timely filed, and all Taxes shown on such Tax returns to be due and payable and all other Taxes upon a  Loan Party and its Subsidiaries and upon their respective assets, income, businesses and franchises that  are due and payable have been paid when due and payable.  Each Loan Party and each of its Subsidiaries  have made adequate provision in accordance with GAAP for all Taxes not yet due and payable.  No  Borrower knows of any proposed material Tax assessment against a Loan Party or any of its Subsidiaries  that is not being actively contested by such Loan Party or such Subsidiary diligently, in good faith, and by  appropriate proceedings; provided, that such reserves or other appropriate provisions, if any, as shall be  required in conformity with GAAP shall have been made or provided therefor.  4.16 Margin Stock.  Neither any Loan Party nor any of its Restricted Subsidiaries owns any  Margin Stock or is engaged principally, or as one of its important activities, in the business of extending  credit for the purpose of purchasing or carrying any Margin Stock.  No part of the proceeds of the Loans  made to Borrowers will be used to purchase or carry any Margin Stock or to extend credit to others for the  purpose of purchasing or carrying any Margin Stock or for any purpose that violates the provisions of  Regulation T, U or X of the Board of Governors.  Neither any Loan Party nor any of its Restricted  Subsidiaries expects to acquire any Margin Stock.  





 






   -88-      4.17 Governmental Regulation.  No Loan Party nor any of its Restricted Subsidiaries is  subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or under any  other federal or state statute or regulation which may limit its ability to incur Indebtedness or which may  otherwise render all or any portion of the Obligations unenforceable.  No Loan Party nor any of its  Restricted Subsidiaries is a “registered investment company” or a company “controlled” by a “registered  investment company” or a “principal underwriter” of a “registered investment company” as such terms  are defined in the Investment Company Act of 1940.  4.18 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws.  No Loan  Party or any of its Subsidiaries is in violation of any Sanctions.  No Loan Party nor any of its Subsidiaries  nor, to the knowledge of such Loan Party, any director, officer, employee, agent or Affiliate of such Loan  Party or such Subsidiary (a) is a Sanctioned Person or a Sanctioned Entity, (b) has any assets located in  Sanctioned Entities, or (c) derives revenues from investments in, or transactions with Sanctioned Persons  or Sanctioned Entities.  Each of the Loan Parties and its Subsidiaries has implemented and maintains in  effect policies and procedures reasonably designed to ensure compliance with Sanctions, Anti-Corruption  Laws and Anti-Money Laundering Laws.  Each of the Loan Parties and its Subsidiaries, and to the  knowledge of each such Loan Party, each director, officer, employee, agent and Affiliate of each such  Loan Party and each such Subsidiary, is in compliance with all Sanctions, Anti-Corruption Laws and  Anti-Money Laundering Laws.  No proceeds of any Loan made or Letter of Credit issued hereunder will  be used to fund any operations in, finance any investments or activities in, or make any payments to, a  Sanctioned Person or a Sanctioned Entity, or otherwise used in any manner that would result in a  violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law by any Person  (including any Lender, Bank Product Provider, or other individual or entity participating in any  transaction).  4.19 Employee and Labor Matters.  Except as could not reasonably be expected, individually  or in the aggregate, to have a Material Adverse Effect, there is (i) no unfair labor practice complaint  pending or, to the knowledge of any Borrower, threatened against any Loan Party or its Restricted  Subsidiaries before any Governmental Authority and no grievance or arbitration proceeding pending or  threatened against any Loan Party or its Restricted Subsidiaries which arises out of or under any  collective bargaining agreement and that could reasonably be expected to result in a material liability, (ii)  no strike, labor dispute, slowdown, stoppage or similar action or grievance pending or threatened in  writing against any Loan Party or its Restricted Subsidiaries that could reasonably be expected to result in  a material liability, or (iii) to the knowledge of any Borrower, after due inquiry, no union representation  question existing with respect to the employees of any Loan Party or its Restricted Subsidiaries and no  union organizing activity taking place with respect to any of the employees of any Loan Party or its  Restricted Subsidiaries that could reasonably be expected to result in liability.  None of any Loan Party or  its Restricted Subsidiaries has incurred any material liability or obligation under the Worker Adjustment  and Retraining Notification Act or similar state law, which remains unpaid or unsatisfied.  The hours  worked and payments made to employees of each Loan Party and its Restricted Subsidiaries have not  been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except to the  extent such violations could not, individually or in the aggregate, reasonably be expected to result in a  Material Adverse Effect.  All material payments due from any Loan Party or its Restricted Subsidiaries on  account of wages and employee health and welfare insurance and other benefits have been paid or  accrued as a liability on the books of Borrowers, except where the failure to do so could not, individually  or in the aggregate, reasonably be expected to result in a Material Adverse Effect.  4.20 Parent as Holding Company.  Parent is a holding company and does not have any  material liabilities (other than liabilities arising under the Loan Documents), own any material assets  





 






   -89-      (other than the Equity Interests of Borrower) or engage in any material business operations other than (a)  the ownership of Subsidiaries, (b) the maintenance of its legal existence (including the ability to incur  fees, costs and expenses relating to such maintenance), (c) the performance of its obligations with respect  to the Loan Documents, its organizational documents, Permitted Indebtedness, and any shareholder  agreements, (d) financing activities, including the issuance of securities, incurrence of debt, guarantees of  or other credit support of obligations of its Restricted Subsidiaries, payment of dividends, making  contributions to the capital of the Borrowers and guaranteeing the obligations of the Borrowers, (e)  participating in Tax, accounting and other administrative matters  arising as result of Parent’s ownership  of the Borrowers, (f) holding any cash or property (but not operating any property), (g) providing  indemnification to officers, managers and directors, and (h) any activities incidental or reasonably related  to the foregoing.  4.21 Leases.  Each Loan Party and its Restricted Subsidiaries enjoy peaceful and undisturbed  possession under all leases material to their business and to which they are parties or under which they are  operating, and, subject to Permitted Protests, all of such material leases are valid and subsisting and no  material default by the applicable Loan Party or its Restricted Subsidiaries exists under any of them.  4.22 Eligible Accounts.  As to each Account that is identified by Borrowers as an Eligible  Account in a Borrowing Base Certificate submitted to Agent, such Account is (a) a bona fide existing  payment obligation of the applicable Account Debtor created by the sale and delivery of Inventory or the  rendition of services to such Account Debtor in the ordinary course of a Borrower’s business, (b) as of the  date of submission of such Borrowing Base Certificate, owed to a Borrower without any known defenses,  disputes, offsets, counterclaims, or rights of return or cancellation, and (c) as of the date of submission of  such Borrowing Base Certificate, not excluded as ineligible by virtue of one or more of the excluding  criteria (other than any Agent-discretionary criteria) set forth in the definition of Eligible Accounts.  4.23 [Reserved].  4.24 [Reserved].    4.25 [Reserved].    4.26 [Reserved].    4.27 [Reserved].    4.28 [Reserved].    4.29 Hedge Agreements.  On each date that any Hedge Agreement is executed by any Hedge  Provider, Borrower and each other Loan Party satisfy all eligibility, suitability and other requirements  under the Commodity Exchange Act (7 U.S.C. § 1, et seq., as in effect from time to time) and the  Commodity Futures Trading Commission regulations.  5. AFFIRMATIVE COVENANTS.  Each Borrower covenants and agrees that, until the termination of all of the  Commitments and payment in full of the Obligations:  5.1 Financial Statements, Reports, Certificates.  Borrowers (a) will deliver to Agent, with  copies to each Lender, each of the financial statements, reports, and other items set forth on Schedule 5.1  





 






   -90-      to this Agreement no later than the times specified therein, (b) agree that no Restricted Subsidiary of a  Loan Party will have a fiscal year different from that of Administrative Borrower, (c) agree to maintain a  system of accounting that enables Borrowers to produce financial statements in accordance with GAAP in  all material respects, and (d) agree that they will, and will cause each other Loan Party to, (i) keep a  reporting system that shows all additions, sales, claims, returns, and allowances with respect to their and  their Restricted Subsidiaries’ sales, and (ii) maintain their billing systems and practices substantially as in  effect as of the Closing Date and shall only make material modifications thereto with notice to, and with  the consent of, Agent.  5.2 Reporting.  Borrowers (a) will deliver to Agent (and if so requested by Agent, with  copies for each Lender) each of the reports and other items set forth on Schedule 5.2 to this Agreement at  the times specified therein, (b) will notify Agent promptly (and in any event within one (1) Business Day)  after any financial officer of Borrower has actual knowledge if (i) Accounts in an aggregate face amount  of $1,000,000 or more that were Eligible Accounts in the immediately preceding month cease to be  Eligible Accounts or (ii) Accounts arising from Blenders Tax Credits in an aggregate amount of  $1,000,000 or more that were Eligible Blenders Tax Credit Accounts in the immediately preceding month  cease to be Eligible Accounts, and (c) agree to use commercially reasonable efforts in cooperation with  Agent to facilitate and implement a system of electronic collateral reporting in order to provide electronic  reporting of each of the items set forth on such Schedule.  Borrowers may deliver additional Borrowing  Base Certificates from time to time in Borrowers’ discretion.  Borrowers and Agent hereby agree that the  delivery of the Borrowing Base Certificate through Agent’s electronic platform or portal, subject to  Agent’s authentication process, by such other electronic method as may be approved by Agent from time  to time in its sole discretion, or by such other electronic input of information necessary to calculate the  Borrowing Bases as may be approved by Agent from time to time in its sole discretion, shall in each case  be deemed to satisfy the obligation of Borrowers to deliver such Borrowing Base Certificate, with the  same legal effect as if such Borrowing Base Certificate had been manually executed by Borrowers and  delivered to Agent.  5.3 Existence.  Except as otherwise permitted under Section 6.3 or Section 6.4, each Loan  Party will, and will cause each of its Restricted Subsidiaries to, at all times preserve and keep in full force  and effect such Person’s valid existence and good standing in its jurisdiction of organization and, except  as could not reasonably be expected to result in a Material Adverse Effect, good standing with respect to  all other jurisdictions in which it is qualified to do business and any rights, franchises, permits, licenses,  accreditations, authorizations, or other approvals material to their businesses.  5.4 Maintenance of Properties.  Each Loan Party will, and will cause each of its Restricted  Subsidiaries to, maintain and preserve all of its assets that are necessary or useful in the proper conduct of  its business in good working order and condition, ordinary wear, tear, casualty, and condemnation and  Permitted Dispositions excepted.  5.5 Taxes.  Each Loan Party will, and will cause each of its Restricted Subsidiaries  to, pay in  full before delinquency or before the expiration of any extension period all Taxes imposed, levied, or  assessed against it, or any of its assets or in respect of any of its income, businesses, or franchises, other  than Taxes to the extent that the validity of such Tax is the subject of a Permitted Protest or to the extent  that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.  5.6 Insurance.    





 






   -91-      (a) Each Loan Party will, and will cause each of its Restricted Subsidiaries to, at  Borrowers’ expense, maintain insurance respecting each of each Loan Party’s and its Restricted  Subsidiaries’ assets wherever located, covering liabilities, losses or damages as are customarily are  insured against by other Persons engaged in same or similar businesses and similarly situated and located.   All such policies of insurance shall be with financially sound and reputable insurance companies  acceptable to Agent (it being agreed that, as of the Closing Date, the Loan Parties’ existing insurance  providers as set forth in the certificates of insurance delivered to Agent on or about the Closing Date shall  be deemed to be acceptable to Agent) and in such amounts as is carried generally in accordance with  sound business practice by companies in similar businesses similarly situated and located and, in any  event, in amount, adequacy, and scope reasonably satisfactory to Agent (it being agreed that the amount,  adequacy, and scope of the policies of insurance of Borrowers in effect as of the Closing Date are  acceptable to Agent).    All certificates of general liability insurance are to be delivered to Agent, with  additional insured endorsements in favor of Agent, and shall provide for not less than thirty days (ten  days in the case of non-payment) prior written notice to Agent of the exercise of any right of cancellation.    If any Loan Party or its Restricted Subsidiaries fails to maintain such insurance, Agent may arrange for  such insurance, but at Borrowers’ expense and without any responsibility on Agent’s part for obtaining  the insurance, the solvency of the insurance companies, the adequacy of coverage, or the collection of  claims.    (b) Borrowers shall give Agent prompt notice of any loss exceeding $1,000,000  covered by the casualty or business interruption insurance of any Loan Party or its Restricted  Subsidiaries.    Upon the occurrence and during the continuance of an Event of Default, Agent shall have  the sole right to file claims under any liability insurance policies in respect of the Collateral, to receive,  receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all  endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to  effect the collection, compromise or settlement of any claims under any such insurance policies.   5.7 Inspection.  (a) Each Loan Party will, and will cause each of its Restricted Subsidiaries to, permit  Agent, any Lender, and each of their respective duly authorized representatives or agents to visit any of  its properties and inspect any of its assets or books and records, to examine and make copies of its books  and records, and to discuss its affairs, finances, and accounts with, and to be advised as to the same by, its  officers and employees (provided, that an authorized representative of a Borrower shall be allowed to be  present) at such reasonable times and intervals as Agent or any Lender, as applicable, may designate and,  so long as no Default or Event of Default has occurred and is continuing, with reasonable prior notice to  Borrowers and during regular business hours, at Borrowers’ expense in accordance with the provisions of  the Fee Letter, subject to the limitations set forth below in Section 5.7(c).  (b) Each Loan Party will, and will cause each of its Restricted Subsidiaries to, permit  Agent and each of its duly authorized representatives or agents to conduct field examinations, appraisals  or valuations with respect to the Accounts of a Loan Party upon reasonable notice during regular business  hours and intervals as Agent may designate, subject to Borrowers’ customary safety protocols at  Borrowers’ expense in accordance with the provisions of the Fee Letter, subject to the limitations set forth  below in Section 5.7(c).  (c) So long as no Event of Default shall have occurred and be continuing, Borrowers  shall not be obligated to reimburse Agent for more than (i) during the period from the Closing Date  through the first anniversary of the Closing Date, two (2) field examinations (which shall include the  





 






   -92-      Initial Field Examination) during such period and (ii) at all times thereafter, one (1) field examination  during each twelve-month period (increasing to two (2) field examinations if an Increased Reporting  Event has occurred during such twelve-month period), it being acknowledged and agreed that (x) such  limitations on reimbursement shall not apply to field examinations which are conducted when an Event of  Default exists and is continuing, or which is required by applicable laws, rules, regulations, and orders of  any Governmental Authority and (y) Agent may conduct any field examinations at its own expense.  5.8 Compliance with Laws.  Each Loan Party will, and will cause each of its Restricted  Subsidiaries to, comply with the requirements of all applicable laws, rules, regulations, and orders of any  Governmental Authority, other than laws, rules, regulations, and orders the non-compliance with which,  individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.  5.9 Environmental.  Each Loan Party will, and will cause each of its Restricted Subsidiaries  to,  (a) Keep any property either owned or operated by any Loan Party or its Restricted  Subsidiaries free of any Environmental Liens or post bonds or other financial assurances sufficient to  satisfy the obligations or liability evidenced by such Environmental Liens,  (b) Comply with Environmental Laws, except as could not reasonably be expected to  result in a Material Adverse Effect, and provide to Agent documentation of such compliance which Agent  reasonably requests,  (c) Promptly notify Agent of any release of which any Loan Party has knowledge of  a Hazardous Material in any reportable quantity from or onto property owned or operated by any Loan  Party or its Restricted Subsidiaries and take any Remedial Actions required to abate said release or  otherwise to come into compliance, in all material respects, with applicable Environmental Law, and  (d) Promptly, but in any event within five Business Days of its receipt thereof,  provide Agent with written notice of any of the following:  (i) notice that an Environmental Lien has been  filed against any of the real or personal property of a Loan Party or its Restricted Subsidiaries, (ii)  commencement of any Environmental Action or written notice that an Environmental Action will be filed  against a Loan Party or its Restricted Subsidiaries, and (iii) written notice of a violation, citation, or other  administrative order from a Governmental Authority.  5.10 Disclosure Updates.  Each Loan Party will, promptly and in no event later than ten  Business Days after obtaining knowledge thereof, notify Agent if any written information, schedule  hereto, exhibit, or report furnished to Agent or the Lenders contained, at the time it was furnished, any  untrue statement of a material fact or omitted to state any material fact necessary to make the statements  contained therein not misleading in any material respect in light of the circumstances in which made.  The  foregoing to the contrary notwithstanding, any notification pursuant to the foregoing provision will not  cure or remedy the effect of the prior untrue statement of a material fact or omission of any material fact  nor shall any such notification have the effect of amending or modifying this Agreement or any of the  Schedules hereto.  5.11 Formation of Subsidiaries.  Each Loan Party will, at the time that any Loan Party forms  any direct or indirect Subsidiary or  acquires any direct or indirect Subsidiary after the Closing Date,  within thirty days of such event (or such later date as permitted by Agent in its sole discretion) (a) unless  such Subsidiary is an Excluded Subsidiary, cause such new Subsidiary (i) if Administrative Borrower  





 






   -93-      requests, subject to the consent of Agent, that such Domestic Subsidiary be joined as a Borrower  hereunder, to provide to Agent a Joinder to this Agreement, and (ii) to provide to Agent a joinder to the  Guaranty and Security Agreement, in each case, together with such other security agreements, as well as  appropriate financing statements, all in form and substance reasonably satisfactory to Agent (including  being sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in and to the Collateral of  such newly formed or acquired Subsidiary), and (b) provide to Agent all other documentation, including  the Governing Documents of such Subsidiary and one or more opinions of counsel reasonably  satisfactory to Agent, which, in its opinion, is appropriate with respect to the execution and delivery of the  applicable documentation referred to above.  Any document, agreement, or instrument executed or issued  pursuant to this Section 5.11 shall constitute a Loan Document.  5.12 Further Assurances.  Each Loan Party will, and will cause each of the other Loan  Parties to, at any time upon the reasonable request of Agent, execute or deliver to Agent any and all  financing statements, security agreements, pledges, assignments,  opinions of counsel, and all other  documents (the “Additional Documents”) that Agent may reasonably request in form and substance  reasonably satisfactory to Agent, to create, perfect, and continue perfected or to better perfect Agent’s  Liens in all of Collateral of each of the Loan Parties (whether now owned or hereafter arising or acquired)  (other than any assets expressly excluded from the Collateral (as defined in the Guaranty and Security  Agreement) pursuant to Section 3 of the Guaranty and Security Agreement), to create and perfect Liens in  favor of Agent in any Collateral acquired by any other Loan Party, and in order to fully consummate all of  the transactions contemplated hereby and under the other Loan Documents; provided, that the foregoing  shall not apply to an Excluded Subsidiary.  To the maximum extent permitted by applicable law, if any  Borrower  or any other Loan Party refuses or fails to execute or deliver any reasonably requested  Additional Documents within a reasonable period of time not to exceed 5 Business Days following the  request to do so, each Borrower and each other Loan Party hereby authorizes Agent to execute any such  Additional Documents in the applicable Loan Party’s name and authorizes Agent to file such executed  Additional Documents in any appropriate filing office.  In furtherance of, and not in limitation of, the  foregoing, each Loan Party shall take such actions as Agent may reasonably request from time to time to  ensure that the Obligations are guaranteed by the Guarantors and are secured by substantially all of the  Collateral of the Loan Parties.  Notwithstanding anything to the contrary contained herein (including  Section 5.11 hereof and this Section 5.12) or in any other Loan Document, (x) Agent shall not accept  delivery of any joinder to any Loan Document with respect to any Subsidiary of any Loan Party that is  not a Loan Party, if such Subsidiary that qualifies as a “legal entity customer” under the Beneficial  Ownership Regulation unless such Subsidiary has delivered a Beneficial Ownership Certification in  relation to such Subsidiary and Agent has completed its Patriot Act searches, OFAC/PEP searches and  customary individual background checks for such Subsidiary, the results of which shall be satisfactory to  Agent.  5.13 [Reserved].    5.14 Chief Executive Office.  Each Loan Party will, and will cause each of its Restricted  Subsidiaries to, keep their respective chief executive offices only at the locations identified on Schedule 7  to the Guaranty and Security Agreement, unless such Loan Party first provides to the Agent at least 30  days prior written notice of a change in the location of its chief executive office.    5.15 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws.  Each  Loan Party will, and will cause each of its Subsidiaries to, comply with all applicable Sanctions, Anti- Corruption Laws and Anti-Money Laundering Laws.  Each of the Loan Parties and its Subsidiaries shall  implement and maintain in effect policies and procedures reasonably designed to ensure compliance by  





 






   -94-      the Loan Parties and their Subsidiaries and their respective directors, officers, employees, agents and  Affiliates with Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws.    5.16 Blenders Tax Credits.  (a) Schedule 5.16 describes Borrower’s filing method under the IRC for tax treatment  that entitles it to elect a refund of excise taxes as a Blenders Tax Credit. Borrower will not alter its filing  method in any way that would limit or prevent its ability to receive the Blenders Tax Credit except as  required by a Change in Law. Any amounts received by Borrower as a Blenders Tax Credit shall be  promptly, but in no event more than three (3) Business Days after receipt, be deposited to a Controlled  Account maintained by a branch office of the bank or securities intermediary located within the United  States.  (b) Borrower will promptly, and in any event within three (3) Business Days after  obtaining knowledge thereof, notify Agent if and when the Blenders Tax Credit is effective for any calendar  year during the term of this Agreement in which the Blenders Tax Credit is signed into law by the President  of the United States or by other legislative action.  (c) At any time when the Blenders Tax Credit is not then in effect, Borrower shall,  together with the interim and year-end financial statements provided by Borrower to Lender pursuant to  Section 5.1, include the net effect of the following three items on the financial condition and results of  operations of Borrower as set forth in those statements, assuming the Blenders Tax Credit will be available  for such period (whether or not it has been extended to cover such period): the gross amount of Blenders  Tax Credit projected by Borrower to be (i) due to Borrower by the Department of Treasury (or other  applicable Governmental Authority), (ii) due to Borrower from its customers, and (iii) due by Borrower to  its customers.  6. NEGATIVE COVENANTS.  Each Borrower covenants and agrees that, until the termination of all of the  Commitments and the payment in full of the Obligations:  6.1 Indebtedness.  Each Loan Party will not, and will not permit any of its Restricted  Subsidiaries to, create, incur, assume, suffer to exist, guarantee, or otherwise become or remain, directly  or indirectly, liable with respect to any Indebtedness, except for Permitted Indebtedness.  6.2 Liens.  Each Loan Party will not, and will not permit any of its Restricted Subsidiaries to,  create, incur, assume, or suffer to exist, directly or indirectly, any Lien on or with respect to any of its  assets, of any kind, whether now owned or hereafter acquired, or any income or profits therefrom, except  for Permitted Liens.  6.3 Restrictions on Fundamental Changes.  Each Loan Party will not, and will not permit  any of its Restricted Subsidiaries to,  (a) enter into any merger, consolidation, reorganization, or recapitalization, or  reclassify its Equity Interests, except for (i) any merger between Loan Parties; provided, that a Borrower  must be the surviving entity of any such merger to which it is a party, (ii) any merger between a Loan  Party and a Subsidiary of such Loan Party that is not a Loan Party so long as such Loan Party is the  surviving entity of any such merger, and (iii) any merger between Restricted Subsidiaries of any Loan  Party that are not Loan Parties,  





 






   -95-      (b) liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution),  except for (i) the liquidation or dissolution of non-operating Subsidiaries of any Loan Party with nominal  assets and nominal liabilities, (ii) the liquidation or dissolution of a Loan Party (other than any Borrower)  or any of its wholly-owned Subsidiaries so long as all of the assets (including any interest in any Equity  Interests) of such liquidating or dissolving Loan Party or Subsidiary are transferred to a Loan Party that is  not liquidating or dissolving, (iii) follow at least ten (10) Business Days’ written notice from Borrowers to  Agent, the liquidation or dissolution of a Borrower so long as all of the assets (including any interest in  any Equity Interests) of such Borrower are transferred to a Borrower that is not liquidating or dissolving,  or (iv) the liquidation or dissolution of a Subsidiary of any Loan Party that is not a Loan Party (other than  any such Subsidiary the Equity Interests of which (or any portion thereof) is subject to a Lien in favor of  Agent) so long as all of the assets of such liquidating or dissolving Subsidiary are transferred to a  Subsidiary of a Loan Party that is not liquidating or dissolving,  (c) suspend or cease operating a substantial portion of its or their business, except as  permitted pursuant to clauses (a) or (b) above or in connection with a transaction permitted under  Section 6.4, or  (d) change its classification/status for U.S. federal income tax purposes.  6.4 Disposal of Assets.  Other than Permitted Dispositions or transactions expressly  permitted by Sections 6.3 or 6.9, each Loan Party will not, and will not permit any of its Restricted  Subsidiaries to, convey, sell, lease, license, assign, transfer, or otherwise dispose of any of its or their  assets (including by an allocation of assets among newly divided limited liability companies pursuant to a  “plan of division”).  6.5 Nature of Business.  Each Loan Party will not, and will not permit any of its Restricted  Subsidiaries to, make any change in the nature of its or their business as described in Schedule 6.5 to this  Agreement or acquire any properties or assets that are not reasonably related to the conduct of such  business activities or any reasonable extension thereof; provided, that the foregoing shall not prevent any  Loan Party and its Subsidiaries from engaging in any business that is reasonably related or ancillary to its  or their business or a reasonable extension thereof.  6.6 Prepayments and Amendments.  Each Loan Party will not, and will not permit any of  its Restricted Subsidiaries to,  (a) Except in connection with Refinancing Indebtedness permitted by Section 6.1,   (i) optionally prepay, redeem, defease, purchase, or otherwise acquire any  Indebtedness of any Loan Party or its Subsidiaries, other than (A) the Obligations in accordance with this  Agreement, (B) Hedge Obligations, or (C) other Indebtedness so long as the Payment Conditions are  satisfied, or  (ii) make any payment on account of Indebtedness that has been  contractually subordinated in right of payment to the Obligations if (A) such payment is not permitted at  such time under the subordination terms and conditions or (B) the Payment Conditions are not satisfied,  or  (b) Directly or indirectly, amend, modify, or change any of the terms or provisions  of:  





 






   -96-      (i) any agreement, instrument, document, indenture, or other writing  evidencing  or concerning Permitted Indebtedness other than (A) the Obligations in accordance with this  Agreement, (B) Hedge Obligations, (C) Indebtedness permitted under clauses (c), (h), (j) and (k) of the  definition of Permitted Indebtedness, or (D) the Sale Leaseback Outstanding Obligations, so long as such  amendment, modification, or change to the terms or provisions of the Sale Leaseback Outstanding  Obligations are not materially adverse to the interests of Lenders (it being acknowledged and agreed that  a material increase to pricing or yield to the Sale Leaseback Outstanding Obligations shall be deemed to  be materially adverse to the interests of Lenders), or  (ii) the Governing Documents of any Loan Party or any of its Restricted  Subsidiaries if the effect thereof, either individually or in the aggregate, could reasonably be expected to  be materially adverse to the interests of the Lenders.  6.7 Restricted Payments.  Each Loan Party will not, and will not permit any of its Restricted  Subsidiaries to, make any Restricted Payment; provided, that so long as it is permitted by law,  (a) so long as no Default or Event of Default shall have occurred and be continuing  or would result therefrom, Parent’s Subsidiaries may make distributions to Parent,   (b) Restricted Payments in the form of Equity Interests that are not Disqualified  Equity Interests,  (c) Restricted Payments arising from customary settlements of indemnity claims and  purchase price adjustments in connection with an agreement for the purchase or sale of a business unit,  (d) Restricted Payments to, purchase, repurchase, retire or otherwise acquire or retire  for value Equity Interests (A) held by any present or former director, officer, member of management or  employee of any Loan Party, or any Restricted Subsidiary of any Loan Party, in accordance with  repurchase rights or obligations established in connection with such Equity Interests, and (B) pursuant to  the terms of any incentive, benefit, compensation, employee or restricted equity interest purchase plan,  equity interests option plan or other employee benefit or equity based compensation plan established by  any Loan Party; provided that the aggregate amount of all such Restricted Payments made pursuant to this  clause (d) shall not exceed $1,000,000 in any Fiscal Year, or  (e) Restricted Payments consisting of the cashless exercise of options or warrants in  connection with customary and reasonable employee compensation, incentive, or other benefit programs,  or  (f) other Restricted Payments so long as the Payment Conditions are satisfied.  6.8 Accounting Methods.  Each Loan Party will not, and will not permit any of its  Restricted Subsidiaries to, modify or change its fiscal year or its method of accounting (other than as may  be required to conform to GAAP).   6.9 Investments.  Each Loan Party will not, and will not permit any of its Restricted  Subsidiaries to, directly or indirectly, make or acquire any Investment except for Permitted Investments.  





 






   -97-      6.10 Transactions with Affiliates.  Each Loan Party will not, and will not permit any of its  Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction with any  Affiliate (other than any Loan Party or any Restricted Subsidiary) except for:  (a) Transactions pursuant to the Master Services Agreement, so long as such  transactions are no less favorable, taken as a whole, to the Loan Parties or their Restricted Subsidiaries  than would be obtained in an arm’s length transaction with a non-Affiliate;  (b) transactions between any Loan Party or Restricted Subsidiary, on the one hand,  and any such Affiliate, on the other hand, so long as such transactions are no less favorable, taken as a  whole, to such Loan Party or Restricted Subsidiary, as applicable, than would be obtained in an arm’s  length transaction with a non-Affiliate, provided that in the case of such transactions involving aggregate  annual consideration in excess of the greater of (i) $5,000,000 and (ii) two percent (2%) of EBITDA of  the Loan Parties and their Restricted Subsidiaries for the most recent trailing twelve month period prior to  such transaction for which financial statements have been delivered, Administrative Borrower shall have  delivered to Agent a certified resolution of the Board of Managers of Parent resolving that such affiliate  transaction is permitted pursuant to this clause (b),  (c) any indemnity provided for the benefit of directors (or comparable managers) of  a Loan Party or one of its Subsidiaries so long as it has been approved by such Loan Party’s or such  Subsidiary’s board of directors (or comparable governing body) in accordance with applicable law,  (d) the payment of reasonable compensation, severance, or employee benefit  arrangements to employees, officers, and outside directors of a Loan Party or one of its Subsidiaries in the  ordinary course of business and consistent with industry practice so long as it has been approved by such  Loan Party’s or such Subsidiary’s board of directors (or comparable governing body) in accordance with  applicable law,  (e) (i) transactions solely among the Loan Parties, and (ii) transactions solely among  Subsidiaries of Loan Parties that are not Loan Parties,  (f) transactions permitted by Section 6.3, Section 6.7, or Section 6.9, or  (g) agreements for the non-exclusive licensing of intellectual property, or  distribution of products, in each case, among the Loan Parties and their Subsidiaries for the purpose of the  counterparty thereof operating its business, and agreements for the assignment of intellectual property  from any Loan Party or any of its Subsidiaries to any Loan Party.  6.11 Use of Proceeds.  Each Loan Party will not, and will not permit any of its Restricted  Subsidiaries to, use the proceeds of any Loan made hereunder for any purpose other than (a) to pay the  fees, costs, and expenses incurred in connection with this Agreement, the other Loan Documents, and the  transactions contemplated hereby and thereby, and (b)  consistent with the terms and conditions hereof,  for their lawful and permitted purposes; provided that (x) no part of the proceeds of the Loans will be  used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of  purchasing or carrying any such Margin Stock or for any purpose that violates the provisions of  Regulation T, U or X of the Board of Governors, (y) no part of the proceeds of any Loan or Letter of  Credit will be used, directly or indirectly, to make any payments to a Sanctioned Entity or a Sanctioned  Person, to fund any investments, loans or contributions in, or otherwise make such proceeds available to,  a Sanctioned Entity or a Sanctioned Person, to fund any operations, activities or business of a Sanctioned  





 






   -98-      Entity or a Sanctioned Person, or in any other manner that would result in a violation of Sanctions by any  Person, and (z) that no part of the proceeds of any Loan or Letter of Credit will be used, directly or  indirectly, in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving  of money, or anything else of value, to any Person in violation of any Sanctions, Anti-Corruption Laws or  Anti-Money Laundering Laws.  6.12 Parent as Holding Company.  Parent will not incur any material liabilities (other than  liabilities arising under the Loan Documents, the Sale Leaseback Outstanding Obligations and customary  cash management activities), own any material assets (other than the Equity Interests of Borrowers or  Subsidiaries) or engage in any material business operations other than (a) the ownership of Subsidiaries,  (b) the maintenance of its legal existence (including the ability to incur fees, costs and expenses relating  to such maintenance), (c) the performance of its obligations with respect to the Loan Documents, its  organizational documents, any Permitted Indebtedness, and any shareholder agreements, (d) financing  activities, including the issuance of securities, incurrence of debt, payment of dividends, making  contributions to the capital of the Borrower or other Subsidiaries and guaranteeing the obligations of the  Borrower or other Subsidiaries, (e) participating in Tax, accounting, legal and other administrative  matters as a member of the consolidated group of Parent and the Borrower, (f) holding any cash or  property (but not operating any property), (g) providing indemnification to officers, managers and  directors, and (h) any activities incidental or reasonably related to the foregoing.  7. FINANCIAL COVENANT.  (a) Minimum Liquidity.  Until the date which is six (6) months from the Closing  Date, Borrowers will at all times maintain a minimum amount of Liquidity equal to 20% of the Line Cap.  (b) Fixed Charge Coverage Ratio.  Commencing on the date which is six (6)  months after the Closing Date and continuing until the termination of all of the Commitments and the  payment in full of the Obligations, during any Covenant Testing Period, each Borrower covenants and  agrees that Borrowers will maintain a Fixed Charge Coverage Ratio, calculated based on the most recent  financial statements delivered pursuant to Section 5.12 for each 12 month period ending on the first day  of any Covenant Testing Period and the last day of each fiscal month occurring until the end of any  Covenant Testing Period (including the last day thereof), in each case of at least 1.00 to 1.00.   8. EVENTS OF DEFAULT.  Any one or more of the following events shall constitute an event of default (each, an  “Event of Default”) under this Agreement:  8.1 Payments.  If Borrowers fail to pay when due and payable, or when declared due and  payable, (a) all or any portion of the Obligations consisting of interest, fees, or charges due the Lender  Group, reimbursement of Lender Group Expenses, or other amounts (other than any portion thereof  constituting principal) constituting Obligations payable under or in connection with this Agreement or  any other Loan Document (including any portion thereof that accrues after the commencement of an  Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any  such Insolvency Proceeding), and such failure continues for a period of three Business Days, (b) all or  any portion of the principal of the Loans, or (c) any amount payable to Issuing Bank in reimbursement of  any drawing under a Letter of Credit;  8.2 Covenants.  If any Loan Party or any of its Restricted Subsidiaries:  





 






   -99-      (a) fails to perform or observe any covenant or other agreement contained in any of  (i) Sections 5.1, 5.2, 5.3 (solely if any Borrower is not in good standing in its jurisdiction of organization),  5.6, 5.7 (solely if any Borrower refuses to allow Agent or its representatives or agents to visit any  Borrower’s properties, inspect its assets or books or records, examine and make copies of its books and  records, or discuss Borrowers’ affairs, finances, and accounts with officers and employees of any  Borrower), 5.10, 5.11, or 5.14 of this Agreement, (ii) Section 6 of this Agreement, (iii) Section 7 of this  Agreement, or (iv) Section 7 of the Guaranty and Security Agreement;  (b) fails to perform or observe any covenant or other agreement contained in any of  Sections 5.3 (other than if any Borrower is not in good standing in its jurisdiction of organization), 5.4,  5.5, 5.8, and 5.12 of this Agreement and such failure continues for a period of ten days after the earlier of  (i) the date on which such failure shall first become known to any officer of any Borrower, or (ii) the date  on which written notice thereof is given to Borrowers by Agent; or  (c) fails to perform or observe any covenant or other agreement contained in this  Agreement, or in any of the other Loan Documents, in each case, other than any such covenant or  agreement that is the subject of another provision of this Section 8 (in which event such other provision of  this Section 8 shall govern), and such failure continues for a period of thirty days after the earlier of (i) the  date on which such failure shall first become known to any officer of any Borrower, or (ii) the date on  which written notice thereof is given to Borrowers by Agent;  8.3 Judgments.  If one or more judgments, orders, or awards for the payment of money  involving an aggregate amount of $10,000,000, or more (except to the extent fully covered (other than to  the extent of customary deductibles) by insurance pursuant to which the insurer has not denied coverage)  is entered or filed against a Loan Party or any of its Restricted Subsidiaries, or with respect to any of their  respective assets, and either (a) there is a period of thirty consecutive days at any time after the entry of  any such judgment, order, or award during which (i) the same is not discharged, satisfied, vacated, or  bonded pending appeal, or (ii) a stay of enforcement thereof is not in effect, or (b) enforcement  proceedings are commenced upon such judgment, order, or award;  8.4 Voluntary Bankruptcy, etc.  If an Insolvency Proceeding is commenced by a Loan  Party or any of its Restricted Subsidiaries;  8.5 Involuntary Bankruptcy, etc.  If an Insolvency Proceeding is commenced against a  Loan Party or any of its Restricted Subsidiaries and any of the following events occur: (a) such Loan  Party or such Restricted Subsidiary consents to the institution of such Insolvency Proceeding against it,  (b) the petition commencing the Insolvency Proceeding is not timely controverted, (c) the petition  commencing the Insolvency Proceeding is not dismissed within sixty calendar days of the date of the  filing thereof, (d) an interim trustee is appointed to take possession of all or any substantial portion of the  properties or assets of, or to operate all or any substantial portion of the business of, such Loan Party or  its Restricted Subsidiary, or (e) an order for relief shall have been issued or entered therein;  8.6 Default Under Other Agreements.  If there is (a) a default in one or more agreements to  which a Loan Party or any of its Restricted Subsidiaries is a party with one or more third Persons relative  to a Loan Party’s or any of its Restricted Subsidiaries’ Indebtedness involving an aggregate amount of  $10,000,000 or more, and such default (i) occurs at the final maturity of the obligations thereunder, or (ii)  results in a right by such third Person, irrespective of whether exercised, to accelerate the maturity of such  Loan Party’s or its Restricted Subsidiary’s obligations thereunder;  





 






   -100-      8.7 Representations, etc.  If any warranty, representation, certificate, statement, or Record  made herein or in any other Loan Document or delivered in writing to Agent or any Lender in connection  with this Agreement or any other Loan Document proves to be untrue in any material respect (except that  such materiality qualifier shall not be applicable to any representations and warranties that already are  qualified or modified by materiality in the text thereof) as of the date of issuance or making or deemed  making thereof;  8.8 Guaranty.  If the obligation of any Guarantor under the guaranty contained in the  Guaranty and Security Agreement is limited or terminated by operation of law or by such Guarantor  (other than in accordance with the terms of this Agreement or the Guaranty and Security Agreement) or if  any Guarantor repudiates or revokes or purports to repudiate or revoke any such guaranty;  8.9 Security Documents.  If the Guaranty and Security Agreement or any other Loan  Document that purports to create a Lien, shall, for any reason, fail or cease to create a valid, perfected,  and (except to the extent of Permitted Liens which are non-consensual Permitted Liens, permitted  purchase money Liens or the interests of lessors under Capital Leases) first priority Lien on the Collateral  covered thereby, except (a) as a result of a disposition of the applicable Collateral in a transaction  permitted under this Agreement; (b) with respect to Collateral the aggregate value of which, for all such  Collateral, does not exceed at any time, $500,000; or (c) as the result of an action or failure to act on the  part of Agent;  8.10 Loan Documents.  The validity or enforceability of any Loan Document shall at any  time for any reason  (other than solely as the result of an action or failure to act on the part of Agent) be  declared to be null and void, or a proceeding shall be commenced by a Loan Party or its Restricted  Subsidiaries, or by any Governmental Authority having jurisdiction over a Loan Party or its Restricted  Subsidiaries, seeking to establish the invalidity or unenforceability thereof, or a Loan Party or its  Restricted Subsidiaries shall deny that such Loan Party or its Restricted Subsidiaries has any liability or  obligation purported to be created under any Loan Document; or  8.11 Change of Control.  A Change of Control shall occur, whether directly or indirectly.  9. RIGHTS AND REMEDIES.  9.1 Rights and Remedies.  Upon the occurrence and during the continuation of an Event of  Default, Agent may, and, at the instruction of the Required Lenders, shall, in addition to any other rights  or remedies provided for hereunder or under any other Loan Document or by applicable law, do any one  or more of the following:  (a) by written notice to Borrowers, (i) declare the principal of, and any and all  accrued and unpaid interest and fees in respect of, the Loans and all other Obligations (other than the  Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan Documents  to be immediately due and payable, whereupon the same shall become and be immediately due and  payable and Borrowers shall be obligated to repay all of such Obligations in full, without presentment,  demand, protest, or further notice or other requirements of any kind, all of which are hereby expressly  waived by each Borrower, and (ii) direct Borrowers to provide (and Borrowers agree that upon receipt of  such notice Borrowers will provide) Letter of Credit Collateralization to Agent to be held as security for  Borrowers’ reimbursement obligations for drawings that may subsequently occur under issued and  outstanding Letters of Credit;  





 






   -101-      (b) by written notice to Borrowers, declare the Commitments terminated, whereupon  the Commitments shall immediately be terminated together with (i) any obligation of any Revolving  Lender to make Revolving Loans, (ii) the obligation of the Swing Lender to make Swing Loans, and (iii)  the obligation of Issuing Bank to issue Letters of Credit; and  (c) exercise all other rights and remedies available to Agent or the Lenders under the  Loan Documents, under applicable law, or in equity;   The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Default described in  Section 8.4 or Section 8.5, in addition to the remedies set forth above, without any notice to Borrowers or  any other Person or any act by the Lender Group, the Commitments shall automatically terminate and the  Obligations (other than the Bank Product Obligations), inclusive of the principal of, and any and all accrued  and unpaid interest and fees in respect of, the Loans and all other Obligations (other than the Bank Product  Obligations), whether evidenced by this Agreement or by any of the other Loan Documents, shall  automatically become and be immediately due and payable and Borrowers shall automatically be obligated  to repay all of such Obligations in full (including Borrowers being obligated to provide (and Borrowers  agree that they will provide) (1) Letter of Credit Collateralization to Agent to be held as security for  Borrowers’ reimbursement obligations in respect of drawings that may subsequently occur under issued  and outstanding Letters of Credit and (2) Bank Product Collateralization to be held as security for  Borrowers’ or their Restricted Subsidiaries’ obligations in respect of outstanding Bank Products), without  presentment, demand, protest, or notice or other requirements of any kind, all of which are expressly waived  by Borrowers.  9.2 Remedies Cumulative.  The rights and remedies of the Lender Group under this  Agreement, the other Loan Documents, and all other agreements shall be cumulative.  The Lender Group  shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or  in equity.  No exercise by the Lender Group of one right or remedy shall be deemed an election, and no  waiver by the Lender Group of any Default or Event of Default shall be deemed a continuing waiver.  No  delay by the Lender Group shall constitute a waiver, election, or acquiescence by it.  10. WAIVERS; INDEMNIFICATION.  10.1 Demand; Protest; etc.  Each Borrower waives demand, protest, notice of protest, notice  of default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release, compromise,  settlement, extension, or renewal of documents, instruments, chattel paper, and guarantees at any time  held by the Lender Group on which any Borrower may in any way be liable.  10.2 The Lender Group’s Liability for Collateral.  Each Borrower hereby agrees that:   (a) so long as Agent complies with its obligations, if any, under the Code, the Lender Group shall not in  any way or manner be liable or responsible for:  (i) the safekeeping of the Collateral, (ii) any loss or  damage thereto occurring or arising in any manner or fashion from any cause, (iii) any diminution in the  value thereof, or (iv) any act or default of any carrier, warehouseman, bailee, forwarding agency, or other  Person, and (b) all risk of loss, damage, or destruction of the Collateral shall be borne by the Loan Parties.  10.3 Indemnification.  Each Borrower shall pay, indemnify, defend, and hold the Agent- Related Persons, the Lender-Related Persons, the Issuing Bank, and each Participant (each, an  “Indemnified Person”) harmless (to the fullest extent permitted by law) from and against any and all  claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and  damages, and all reasonable and documented out-of-pocket fees and disbursements of attorneys, experts,  





 






   -102-      or consultants and all other costs and expenses actually incurred in connection therewith or in connection  with the enforcement of this indemnification (as and when they are incurred and irrespective of whether  suit is brought), at any time asserted against, imposed upon, or incurred by any of them (a) in connection  with or as a result of or related to the execution and delivery (provided, that Borrowers shall not be liable  for costs and expenses (including attorneys’ fees) of any Lender (other than Wells Fargo) incurred in  advising, structuring, drafting, reviewing, administering or syndicating the Loan Documents),  enforcement, performance, or administration (including any restructuring or workout with respect hereto)  of this Agreement, any of the other Loan Documents, or the transactions contemplated hereby or thereby  or the monitoring of Borrowers’ their Restricted Subsidiaries’ compliance with the terms of the Loan  Documents (provided, that the indemnification in this clause (a) shall not extend to (i) disputes solely  between or among the Lenders that do not involve any acts or omissions of any Loan Party, or (ii)  disputes solely between or among the Lenders and their respective Affiliates that do not involve any acts  or omissions of any Loan Party; it being understood and agreed that the indemnification in this clause (a)  shall extend to Agent (but not the Lenders unless the dispute involves an act or omission of a Loan Party)  relative to disputes between or among Agent on the one hand, and one or more Lenders, or one or more of  their Affiliates, on the other hand, or (iii) any claims for Taxes, which shall be governed by Section 16,  other than Taxes which relate to primarily non-Tax claims), (b) with respect to any actual or prospective  investigation, litigation, or proceeding related to this Agreement, any other Loan Document, the making  of any Loans or issuance of any Letters of Credit hereunder, or the use of the proceeds of the Loans or the  Letters of Credit provided hereunder (irrespective of whether any Indemnified Person is a party thereto),  or any act, omission, event, or circumstance in any manner related thereto, and (c) in connection with or  arising out of any presence or release of Hazardous Materials at, on, under, to or from any assets or  properties owned, leased or operated by any Loan Party or any of its Restricted Subsidiaries or any  Environmental Actions, Environmental Liabilities or Remedial Actions related in any way to any such  assets or properties of any Loan Party or any of its Restricted Subsidiaries (each and all of the foregoing,  the “Indemnified Liabilities”).  The foregoing to the contrary notwithstanding, no Borrower shall have  any obligation to any Indemnified Person under this Section 10.3 with respect to any Indemnified  Liability that a court of competent jurisdiction finally determines to have resulted from (w) the gross  negligence or willful misconduct of such Indemnified Person or its officers, directors, employees,  attorneys, or agents, (x) a claim brought by the Parent or any other Loan Party against an Indemnified  Person for breach in bad faith of such Indemnified Person’s obligations hereunder or under any other  Loan Document, if Parent or such Loan Party has obtained a final and nonappealable judgment in its  favor on such claim as determined by a court of competent jurisdiction; (y) disputes solely between or  among the Lenders that do not involve any acts or omissions of any Loan Party or any Affiliate thereof;  or (z) disputes solely between or among the Lenders and their respective Affiliates that do not involve any  acts or omissions of any Loan Party or any Affiliate thereof (provided, further, that such indemnification  shall extend to the Agent (but not the Lenders unless the dispute involves an act or omission of a Loan  Party or an Affiliate thereof) in its capacity as Agent, Issuing Bank, or similar role under any Loan  Documents, including Agent’s Affiliates, officers, directors, employees or other representative acting in  such capacity).  This provision shall survive the termination of this Agreement and the repayment in full  of the Obligations.  If any Indemnified Person makes any payment to any other Indemnified Person with  respect to an Indemnified Liability as to which Borrowers were required to indemnify the Indemnified  Person receiving such payment, the Indemnified Person making such payment is entitled to be  indemnified and reimbursed by Borrowers with respect thereto.  Notwithstanding the foregoing, such  legal fees and legal expenses for which the Borrowers may be liable under this Section shall be limited to  the fees and expenses of one primary legal counsel for the Administrative Agent plus, if necessary, one  special counsel for each relevant specialty and one local counsel per jurisdiction; provided, further, that in  the event of any actual or potential conflict of interest, the Borrowers shall be liable for the fees and  expenses of one additional counsel for each Person or group of Persons subject to such conflict.   





 






   -103-      WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO EACH  INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN  WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR  OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON, BUT NOT  FROM THE GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF SUCH  INDEMNIFIED PERSON OR ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, OR  AGENTS.  11. NOTICES.  Unless otherwise provided in this Agreement, all notices or demands relating to this  Agreement or any other Loan Document shall be in writing and (except for financial statements and other  informational documents which may be sent by first-class mail, postage prepaid) shall be personally  delivered or sent by registered or certified mail (postage prepaid, return receipt requested), or overnight  courier.  In the case of notices or demands to any Loan Party or Agent, as the case may be, they shall be  sent to the respective address set forth below:  If to any Loan Party: Montana Renewables, LLC   2780 Waterfront Parkway East, Suite 200  Indianapolis, IN 46214   Attn: Jean-Pierre Breaux     with copies to: Montana Renewables, LLC  2780 Waterfront Parkway East, Suite 200  Indianapolis, IN 46214  Attn: Greg Morical     and: Norton Rose Fulbright US LLP  1301 McKinney, Suite 5100  Houston, Texas  77010-3095  Attn:  Josh Agrons, Esq.  Email: josh.agrons@nortonrosefulbright.com     If to Agent: Wells Fargo Bank, National Association   10 S. Wacker Drive, 22nd Floor   Chicago, IL 60606   Attn: Loan Portfolio Manager     with copies to: Otterbourg P.C.   230 Park Avenue   New York, NY 10169   Attn:  Jim Cretella, Esq.   Fax No.:  (212) 682-6104  Any party hereto may change the address at which they are to receive notices hereunder,  by notice in writing in the foregoing manner given to the other party.  All notices or demands sent in  accordance with this Section 11, shall be deemed received on the earlier of the date of actual receipt or  





 






   -104-      three Business Days after the deposit thereof in the mail; provided, that notices sent by overnight courier  service shall be deemed to have been given when received.  12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE  PROVISION.  (a) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER  LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT), THE  CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF,  THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL  MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR  THERETO, AND ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING HEREUNDER  OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED  UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE  STATE OF NEW YORK.  (b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS  ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE  EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE  COUNTY OF NEW YORK, STATE OF NEW YORK; PROVIDED, THAT ANY SUIT SEEKING  ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE  BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE  AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER  PROPERTY MAY BE FOUND.  EACH BORROWER AND EACH MEMBER OF THE LENDER  GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT  EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO  OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN  ACCORDANCE WITH THIS SECTION 12(b).  (c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,  EACH BORROWER AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE  THEIR RESPECTIVE RIGHTS, IF ANY, TO A JURY TRIAL OF ANY CLAIM,  CONTROVERSY, DISPUTE OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED  UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE  TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT  CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR  STATUTORY CLAIMS (EACH A “CLAIM”).  EACH BORROWER AND EACH MEMBER OF  THE LENDER GROUP REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND  EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS  FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  IN THE EVENT OF  LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT  TO A TRIAL BY THE COURT.  (d) EACH BORROWER HEREBY IRREVOCABLY AND  UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND  FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK AND THE STATE OF  NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO  





 






   -105-      ANY LOAN DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY  JUDGMENT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN  ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE  ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY  OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR ANY  OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT MAY  OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS  PROPERTIES IN THE COURTS OF ANY JURISDICTION.  (e) NO CLAIM MAY BE MADE BY ANY LOAN PARTY AGAINST AGENT,  THE SWING LENDER, ANY OTHER LENDER, ISSUING BANK, OR ANY AFFILIATE,  DIRECTOR, OFFICER, EMPLOYEE, COUNSEL, REPRESENTATIVE, AGENT, OR  ATTORNEY-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT,  CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES IN RESPECT OF  ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY  ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION, OR EVENT  OCCURRING IN CONNECTION THEREWITH, AND EACH LOAN PARTY HEREBY  WAIVES, RELEASES, AND AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH  DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR  SUSPECTED TO EXIST IN ITS FAVOR.  13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.  13.1 Assignments and Participations.  (a) (i)  Subject to the conditions set forth in clause (a)(ii) below, any Lender may  assign and delegate all or any portion of its rights and duties under the Loan Documents (including the  Obligations (other than Bank Product Obligations) owed to it and its Commitments) to one or more  assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the  prior written consent (such consent not be unreasonably withheld or delayed) of:  (A) Borrowers; provided, that no consent of Borrowers shall be  required (1)  if a Default or Event of Default has occurred and is continuing, or (2) in connection with an  assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided  further, that Borrowers shall be deemed to have consented to a proposed assignment unless they object  thereto by written notice to Agent within five Business Days after having received notice thereof; and  (B) Agent, Swing Lender, and Issuing Bank.  (ii) Assignments shall be subject to the following additional conditions:  (A) no assignment may be made to a Disqualified Institution or a  natural person,  (B) no assignment may be made to a Loan Party, or an Affiliate of a  Loan Party,  





 






   -106-      (C) the amount of the Commitments and the other rights and  obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such  assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is  delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such  minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender,  an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of  which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate  amount to be assigned to all such new Lenders is at least $5,000,000),  (D) each partial assignment shall be made as an assignment of a  proportionate part of all the assigning Lender’s rights and obligations under this Agreement,  (E) the parties to each assignment shall execute and deliver to Agent  an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and  directly with the assigning Lender in connection with the interest so assigned to an Assignee until written  notice of such assignment, together with payment instructions, addresses, and related information with  respect to the Assignee, have been given to Borrowers and Agent by such Lender and the Assignee,  (F) unless waived by Agent, the assigning Lender or Assignee has  paid to Agent, for Agent’s separate account, a processing fee in the amount of $3,500, and  (G) the assignee, if it is not a Lender, shall deliver to Agent an  Administrative Questionnaire in a form approved by Agent (the “Administrative Questionnaire”).  (b) From and after the date that Agent receives the executed Assignment and  Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall  be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant  to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a  Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and  obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such  Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released  from any future obligations under this Agreement (and in the case of an Assignment and Acceptance  covering all or the remaining portion of an assigning Lender’s rights and obligations under this  Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto);  provided, that nothing contained herein shall release any assigning Lender from obligations that survive  the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and  Section 17.9(a).  (c) By executing and delivering an Assignment and Acceptance, the assigning  Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties  hereto as follows:  (i) other than as provided in such Assignment and Acceptance, such assigning Lender  makes no representation or warranty and assumes no responsibility with respect to any statements,  warranties or representations made in or in connection with this Agreement or the execution, legality,  validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document  furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no  responsibility with respect to the financial condition of any Loan Party or the performance or observance  by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished  pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with  such other documents and information as it has deemed appropriate to make its own credit analysis and  





 






   -107-      decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and  without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents  and information as it shall deem appropriate at the time, continue to make its own credit decisions in  taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent to take  such actions and to exercise such powers under this Agreement and the other Loan Documents as are  delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably  incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the  terms of this Agreement are required to be performed by it as a Lender.  (d) Immediately upon Agent’s receipt of the required processing fee, if applicable,  and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be  deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the  Assignee and the resulting adjustment of the Commitments arising therefrom.  The Commitment  allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.  (e) Any Lender may at any time sell to one or more commercial banks, financial  institutions, or other Persons that are Eligible Transferees (a “Participant”) participating interests in all or  any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the  “Originating Lender”) hereunder and under the other Loan Documents; provided, that (i) the Originating  Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the  Participant receiving the participating interest in the Obligations, the Commitments, and the other rights  and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the  other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain  unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such  obligations, (iii) Borrowers, Agent, and the Lenders shall continue to deal solely and directly with the  Originating Lender in connection with the Originating Lender’s rights and obligations under this  Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest  under which the Participant has the right to approve any amendment to, or any consent or waiver with  respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or  consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the  final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the  interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release  all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in  any of the Loan Documents) supporting the Obligations hereunder in which such Participant is  participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such  Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or  postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such  Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation  shall be sold to a Loan Party, or an Affiliate of a Loan Party, and (vii) all amounts payable by Borrowers  hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts  outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become  due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the  right of set off in respect of its participating interest in amounts owing under this Agreement to the same  extent as if the amount of its participating interest were owing directly to it as a Lender under this  Agreement.  The rights of any Participant only shall be derivative through the Originating Lender with  whom such Participant participates and no Participant shall have any rights under this Agreement or the  other Loan Documents or any direct rights as to the other Lenders, Agent, Borrowers, the Collateral, or  otherwise in respect of the Obligations.  No Participant shall have the right to participate directly in the  making of decisions by the Lenders among themselves.  





 






   -108-      (f) In connection with any such assignment or participation or proposed assignment  or participation or any grant of a security interest in, or pledge of, its rights under and interest in this  Agreement, a Lender may, subject to the provisions of Section 17.9,  disclose all documents and  information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their  respective businesses.  (g) Any other provision in this Agreement notwithstanding, any Lender may at any  time create a security interest in, or pledge, all or any portion of its rights under and interest in this  Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve  Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR  §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner  permitted under applicable law; provided, that no such pledge shall release such Lender from any of its  obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.  (h) Agent (as a non-fiduciary agent on behalf of Borrowers) shall maintain, or cause  to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the  registered owner of the Revolving Loans (and the principal amount thereof and stated interest thereon)  held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a  Lender of all or any portion of its portion of the Revolving Loans to an Affiliate of such Lender or a  Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same)  may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register  (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such  Registered Loan (and the registered note, if any, evidencing the same) may be effected only by  registration of such assignment or sale on the Register, together with the surrender of the registered note,  if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or  sale duly executed by) the holder of such registered note, whereupon, at the request of the designated  assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount  shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale  of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the  Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is  registered as the owner thereof for the purpose of receiving all payments thereon and for all other  purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any  portion of its Revolving Loans to an Affiliate of such Lender or a Related Fund of such Lender, and  which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall  maintain a register comparable to the Register.  (i) In the event that a Lender sells participations in the Registered Loan, such  Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a  register on which it enters the name of all participants in the Registered Loans held by it (and the  principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to  such participations) (the “Participant Register”). A Registered Loan (and the Registered Note, if any,  evidencing the same) may be participated in whole or in part only by registration of such participation on  the Participant Register (and each registered note shall expressly so provide). Any participation of such  Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the  registration of such participation on the Participant Register. No Lender shall have any obligation to  disclose all or any portion of the Participant Register (including the identity of any Participant or any  information relating to a Participant’s interest in any commitments, loans, letters of credit or its other  obligations under any Loan Document) to any Person except to the extent that such disclosure is  necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form  





 






   -109-      under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant  Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is  recorded in the Participant Register as the owner of such participation for all purposes of this Agreement  notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent)  shall have no responsibility for maintaining a Participant Register.  (j) Agent shall make a copy of the Register (and each Lender shall make a copy of  its Participant Register to the extent it has one) available for review by Borrowers from time to time as  Borrowers may reasonably request.  13.2 Successors.  This Agreement shall bind and inure to the benefit of the respective  successors and assigns of each of the parties; provided, that no Borrower may assign this Agreement or  any rights or duties hereunder without the Lenders’ prior written consent and any prohibited assignment  shall be absolutely void ab initio.  No consent to assignment by the Lenders shall release any Borrower  from its Obligations.  A Lender may assign this Agreement and the other Loan Documents and its rights  and duties hereunder and thereunder pursuant to Section 13.1 and, except as expressly required pursuant  to Section 13.1, no consent or approval by any Borrower is required in connection with any such  assignment.  14. AMENDMENTS; WAIVERS.  14.1 Amendments and Waivers.  (a) No amendment, waiver or other modification of any provision of this Agreement  or any other Loan Document (other than the Fee Letter), and no consent with respect to any departure by  any Borrower therefrom, shall be effective unless the same shall be in writing and signed by the Required  Lenders (or by Agent at the written request of the Required Lenders) and the Loan Parties that are party  thereto and then any such waiver or consent shall be effective, but only in the specific instance and for the  specific purpose for which given; provided, that no such waiver, amendment, or consent shall, unless in  writing and signed by all of the Lenders directly and adversely affected thereby and all of the Loan Parties  that are party thereto, do any of the following:  (i) increase the amount of or extend the expiration date of any Commitment  of any Lender or amend, modify, or eliminate the last sentence of Section 2.4(c)(i),  (ii) postpone or delay any date fixed by this Agreement or any other Loan  Document for any payment of principal, interest, fees, or other amounts due hereunder or under any other  Loan Document,  (iii) reduce the principal of, or the rate of interest on, any loan or other  extension of credit hereunder, or reduce any fees or other amounts payable hereunder or under any other  Loan Document (except (y) in connection with the waiver of applicability of Section 2.6(c) (which waiver  shall be effective with the written consent of the Required Lenders), and (z) that any amendment or  modification of financial covenant ratios or defined terms used in the financial covenants in this  Agreement shall not constitute a reduction in the rate of interest or a reduction of fees for purposes of this  clause (iii)),  (iv) amend, modify, or eliminate this Section or any provision of this  Agreement providing for consent or other action by all Lenders,  





 






   -110-      (v) amend, modify, or eliminate Section 3.1,  (vi) amend, modify, or eliminate Section 15.11,  (vii) other than as permitted by Section 15.11, release or contractually  subordinate Agent’s Lien in and to all or substantially all of the Collateral,  (viii) amend, modify, or eliminate the definitions of “Required Lenders”,  Supermajority Lenders or “Pro Rata Share”,  (ix) other than in connection with a merger, liquidation, dissolution or sale of  such Person expressly permitted by the terms hereof or the other Loan Documents, release any Borrower  or any Guarantor from any obligation for the payment of money or consent to the assignment or transfer  by any Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan  Documents,  (x) amend, modify, or eliminate any of the provisions of Section 2.4(b)(i),  (ii) or (iii), or  (xi) amend, modify, or eliminate any of the provisions of Section 13.1 with  respect to assignments to, or participations with, Persons who are Loan Parties, or Affiliates of a Loan  Party;   (b) No amendment, waiver, modification, or consent shall amend, modify, waive, or  eliminate,  (i) the definition of, or any of the terms or provisions of, the Fee Letter,  without the written consent of Agent and Borrowers (and shall not require the written consent of any of  the Lenders),  (ii) any provision of Section 15 pertaining to Agent, or any other rights or  duties of Agent under this Agreement or the other Loan Documents, without the written consent of Agent,  Borrowers, and the Required Lenders;  (c) No amendment, waiver, modification, elimination, or consent shall amend,  without written consent of Agent, Borrowers and the Supermajority Lenders, modify, or eliminate the  definition of Borrowing Base or any of the defined terms (including the definitions of Eligible Accounts  or Eligible Blenders Tax Credit Accounts) that are used in such definition to the extent that any such  change results in more credit being made available to Borrowers based upon the Borrowing Base, but not  otherwise, or the definition of Maximum Revolver Amount;  (d) No amendment, waiver, modification, elimination, or consent shall amend,  modify, or waive any provision of this Agreement or the other Loan Documents pertaining to Issuing  Bank, or any other rights or duties of Issuing Bank under this Agreement or the other Loan Documents,  without the written consent of Issuing Bank, Agent, Borrowers, and the Required Lenders;  (e) No amendment, waiver, modification, elimination, or consent shall amend,  modify, or waive any provision of this Agreement or the other Loan Documents pertaining to Swing  Lender, or any other rights or duties of Swing Lender under this Agreement or the other Loan Documents,  without the written consent of Swing Lender, Agent, Borrowers, and the Required Lenders; and  





 






   -111-      (f) Anything in this Section 14.1 to the contrary notwithstanding, (i) any  amendment, waiver, modification, elimination, or consent of or with respect to any provision of this  Agreement or any other Loan Document may be entered into without the consent of, or over the objection  of, any Defaulting Lender and (ii) any amendment contemplated by Section 2.12 of this Agreement in  connection with a Benchmark Transition Event shall be effective as contemplated by such Section 2.12  hereof.  (g) Notwithstanding anything to the contrary contained in this Section 14.1, the  Administrative Borrower and Agent may without the input or consent of the Lenders, effect amendments  to this Agreement and the other Loan Documents (i) to cure any obvious error or any ambiguity,  omission, defect or inconsistency of a technical nature, so long as the Lenders shall have received at least  5 Business Days’ prior written notice thereof and Agent shall not have received, within 5 Business Days  of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the  Required Lenders object to such amendment.  14.2 Replacement of Certain Lenders.  (a) If (i) any action to be taken by the Lender Group or Agent hereunder requires the  consent, authorization, or agreement of all Lenders or all Lenders affected thereby and if such action has  received the consent, authorization, or agreement of the Required Lenders but not of all Lenders or all  Lenders affected thereby, or (ii) any Lender makes a claim for compensation under Section 16, then  Borrowers or Agent, upon at least five Business Days prior irrevocable notice, may permanently replace  any Lender that failed to give its consent, authorization, or agreement (a “Non-Consenting Lender”) or  any Lender that made a claim for compensation (a “Tax Lender”) with one or more Replacement Lenders,  and the Non-Consenting Lender or Tax Lender, as applicable, shall have no right to refuse to be replaced  hereunder.  Such notice to replace the Non-Consenting Lender or Tax Lender, as applicable, shall specify  an effective date for such replacement, which date shall not be later than 15 Business Days after the date  such notice is given.  (b) Prior to the effective date of such replacement, the Non-Consenting Lender or  Tax Lender, as applicable, and each Replacement Lender shall execute and deliver an Assignment and  Acceptance, subject only to the Non-Consenting Lender or Tax Lender, as applicable, being repaid in full  its share of the outstanding Obligations (without any premium or penalty of any kind whatsoever, but  including (i) all interest, fees and other amounts that may be due in payable in respect thereof and (ii) an  assumption of its Pro Rata Share of participations in the Letters of Credit).  If the Non-Consenting Lender  or Tax Lender, as applicable, shall refuse or fail to execute and deliver any such Assignment and  Acceptance prior to the effective date of such replacement, Agent may, but shall not be required to,  execute and deliver such Assignment and Acceptance in the name or and on behalf of the Non- Consenting Lender or Tax Lender, as applicable, and irrespective of whether Agent executes and delivers  such Assignment and Acceptance, the Non-Consenting Lender or Tax Lender, as applicable, shall be  deemed to have executed and delivered such Assignment and Acceptance.  The replacement of any Non- Consenting Lender or Tax Lender, as applicable, shall be made in accordance with the terms of Section  13.1.  Until such time as one or more Replacement Lenders shall have acquired all of the Obligations, the  Commitments, and the other rights and obligations of the Non-Consenting Lender or Tax Lender, as  applicable, hereunder and under the other Loan Documents, the Non-Consenting Lender or Tax Lender,  as applicable, shall remain obligated to make the Non-Consenting Lender’s or Tax Lender’s, as  applicable, Pro Rata Share of Revolving Loans and to purchase a participation in each Letter of Credit, in  an amount equal to its Pro Rata Share of participations in such Letters of Credit.  





 






   -112-      14.3 No Waivers; Cumulative Remedies.  No failure by Agent or any Lender to exercise any  right, remedy, or option under this Agreement or any other Loan Document, or delay by Agent or any  Lender in exercising the same, will operate as a waiver thereof.  No waiver by Agent or any Lender will  be effective unless it is in writing, and then only to the extent specifically stated.  No waiver by Agent or  any Lender on any occasion shall affect or diminish Agent’s and each Lender’s rights thereafter to require  strict performance by Borrowers of any provision of this Agreement.  Agent’s and each Lender’s rights  under this Agreement and the other Loan Documents will be cumulative and not exclusive of any other  right or remedy that Agent or any Lender may have.  15. AGENT; THE LENDER GROUP.  15.1 Appointment and Authorization of Agent.  Each Lender hereby designates and  appoints Wells Fargo as its agent under this Agreement and the other Loan Documents and each Lender  hereby irrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product  Provider shall be deemed to designate, appoint, and authorize) Agent to execute and deliver each of the  other Loan Documents on its behalf and to take such other action on its behalf under the provisions of this  Agreement and each other Loan Document and to exercise such powers and perform such duties as are  expressly delegated to Agent by the terms of this Agreement or any other Loan Document, together with  such powers as are reasonably incidental thereto.  Agent agrees to act as agent for and on behalf of the  Lenders (and the Bank Product Providers) on the conditions contained in this Section 15.  Any provision  to the contrary contained elsewhere in this Agreement or in any other Loan Document notwithstanding,  Agent shall not have any duties or responsibilities, except those expressly set forth herein or in the other  Loan Documents, nor shall Agent have or be deemed to have any fiduciary relationship with any Lender  (or Bank Product Provider), and no implied covenants, functions, responsibilities, duties, obligations or  liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Agent.   Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement or the  other Loan Documents with reference to Agent is not intended to connote any fiduciary or other implied  (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used  merely as a matter of market custom, and is intended to create or reflect only a representative relationship  between independent contracting parties.  Each Lender hereby further authorizes (and by entering into a  Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to act as the  secured party under each of the Loan Documents that create a Lien on any item of Collateral.  Except as  expressly otherwise provided in this Agreement, Agent shall have and may use its sole discretion with  respect to exercising or refraining from exercising any discretionary rights or taking or refraining from  taking any actions that Agent expressly is entitled to take or assert under or pursuant to this Agreement  and the other Loan Documents.  Without limiting the generality of the foregoing, or of any other  provision of the Loan Documents that provides rights or powers to Agent, Lenders agree that Agent shall  have the right to exercise the following powers as long as this Agreement remains in effect:  (a) maintain,  in accordance with its customary business practices, ledgers and records reflecting the status of the  Obligations, the Collateral, payments and proceeds of Collateral, and related matters, (b) execute or file  any and all financing or similar statements or notices, amendments, renewals, supplements, documents,  instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents, or  to take any other action with respect to any Collateral or Loan Documents which may be necessary to  perfect, and maintain perfected, the security interests and Liens upon Collateral pursuant to the Loan  Documents, (c) make Revolving Loans, for itself or on behalf of Lenders, as provided in the Loan  Documents, (d) exclusively receive, apply, and distribute payments and proceeds of the Collateral as  provided in the Loan Documents, (e) open and maintain such bank accounts and cash management  arrangements as Agent deems necessary and appropriate in accordance with the Loan Documents for the  foregoing purposes, (f) perform, exercise, and enforce any and all other rights and remedies of the Lender  





 






   -113-      Group with respect to any Loan Party or its Subsidiaries, the Obligations, the Collateral, or otherwise  related to any of same as provided in the Loan Documents, and (g) incur and pay such Lender Group  Expenses as Agent may deem necessary or appropriate for the performance and fulfillment of its  functions and powers pursuant to the Loan Documents.  15.2 Delegation of Duties.  Agent may execute any of its duties under this Agreement or any  other Loan Document by or through agents, employees or attorneys in fact and shall be entitled to advice  of counsel concerning all matters pertaining to such duties.  Agent shall not be responsible for the  negligence or misconduct of any agent or attorney in fact that it selects as long as such selection was  made without gross negligence or willful misconduct.  15.3 Liability of Agent.  None of the Agent-Related Persons shall (a) be liable for any action  taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan  Document or the transactions contemplated hereby (except for its own gross negligence or willful  misconduct), or (b) be responsible in any manner to any of the Lenders (or Bank Product Providers) for  any recital, statement, representation or warranty made by any Loan Party or any of its Subsidiaries or  Affiliates, or any officer or director thereof, contained in this Agreement or in any other Loan Document,  or in any certificate, report, statement or other document referred to or provided for in, or received by  Agent under or in connection with, this Agreement or any other Loan Document, or the validity,  effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document,  or for any failure of any Loan Party or its Subsidiaries or any other party to any Loan Document to  perform its obligations hereunder or thereunder.  No Agent-Related Person shall be under any obligation  to any Lenders (or Bank Product Providers) to ascertain or to inquire as to the observance or performance  of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or  to inspect the books and records or properties of any Loan Party or its Subsidiaries.  No Agent-Related  Person shall have any liability to any Lender, and Loan Party or any of their respective Affiliates if any  request for a Loan, Letter of Credit or other extension of credit was not authorized by the applicable  Borrower.  Agent shall not be required to take any action that, in its opinion or in the opinion of its  counsel, may expose it to liability or that is contrary to any Loan Document or applicable law or  regulation.  15.4 Reliance by Agent.  Agent shall be entitled to rely, and shall be fully protected in  relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, telefacsimile  or other electronic method of transmission, telex or telephone message, statement or other document or  conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper  Person or Persons, and upon advice and statements of legal counsel (including counsel to Borrowers or  counsel to any Lender), independent accountants and other experts selected by Agent.  Agent shall be  fully justified in failing or refusing to take any action under this Agreement or any other Loan Document  unless Agent shall first receive such advice or concurrence of the Lenders as it deems appropriate and  until such instructions are received, Agent shall act, or refrain from acting, as it deems advisable.  If  Agent so requests, it shall first be indemnified to its reasonable satisfaction by the Lenders (and, if it so  elects, the Bank Product Providers) against any and all liability and expense that may be incurred by it by  reason of taking or continuing to take any such action.  Agent shall in all cases be fully protected in  acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance  with a request or consent of the Required Lenders and such request and any action taken or failure to act  pursuant thereto shall be binding upon all of the Lenders (and Bank Product Providers).  15.5 Notice of Default or Event of Default.  Agent shall not be deemed to have knowledge or  notice of the occurrence of any Default or Event of Default, except with respect to defaults in the payment  





 






   -114-      of principal, interest, fees, and expenses required to be paid to Agent for the account of the Lenders and,  except with respect to Events of Default of which Agent has actual knowledge, unless Agent shall have  received written notice from a Lender or Borrowers referring to this Agreement, describing such Default  or Event of Default, and stating that such notice is a “notice of default.”  Agent promptly will notify the  Lenders of its receipt of any such notice or of any Event of Default of which Agent has actual knowledge.   If any Lender obtains actual knowledge of any Event of Default, such Lender promptly shall notify the  other Lenders and Agent of such Event of Default.  Each Lender shall be solely responsible for giving any  notices to its Participants, if any.  Subject to Section 15.4, Agent shall take such action with respect to  such Default or Event of Default as may be requested by the Required Lenders in accordance with  Section 9; provided, that unless and until Agent has received any such request, Agent may (but shall not  be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event  of Default as it shall deem advisable.  15.6 Credit Decision.  Each Lender (and Bank Product Provider) acknowledges that none of  the Agent-Related Persons has made any representation or warranty to it, and that no act by Agent  hereinafter taken, including any review of the affairs of any Loan Party and its Subsidiaries or Affiliates,  shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender  (or Bank Product Provider).  Each Lender represents (and by entering into a Bank Product Agreement,  each Bank Product Provider shall be deemed to represent) to Agent that it has, independently and without  reliance upon any Agent-Related Person and based on such due diligence, documents and information as  it has deemed appropriate, made its own appraisal of and investigation into the business, prospects,  operations, property, financial and other condition and creditworthiness of each Borrower or any other  Person party to a Loan Document, and all applicable bank regulatory laws relating to the transactions  contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to  Borrowers.  Each Lender also represents (and by entering into a Bank Product Agreement, each Bank  Product Provider shall be deemed to represent) that it will, independently and without reliance upon any  Agent-Related Person and based on such documents and information as it shall deem appropriate at the  time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action  under this Agreement and the other Loan Documents, and to make such investigations as it deems  necessary to inform itself as to the business, prospects, operations, property, financial and other condition  and creditworthiness of each Borrower or any other Person party to a Loan Document.  Except for  notices, reports, and other documents expressly herein required to be furnished to the Lenders by Agent,  Agent shall not have any duty or responsibility to provide any Lender (or Bank Product Provider) with  any credit or other information concerning the business, prospects, operations, property, financial and  other condition or creditworthiness of any Borrower or any other Person party to a Loan Document that  may come into the possession of any of the Agent-Related Persons.  Each Lender acknowledges (and by  entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge)  that Agent does not have any duty or responsibility, either initially or on a continuing basis (except to the  extent, if any, that is expressly specified herein) to provide such Lender (or Bank Product Provider) with  any credit or other information with respect to any Borrower, its Affiliates or any of their respective  business, legal, financial or other affairs, and irrespective of whether such information came into Agent’s  or its Affiliates’ or representatives’ possession before or after the date on which such Lender became a  party to this Agreement (or such Bank Product Provider entered into a Bank Product Agreement).  15.7 Costs and Expenses; Indemnification.  Agent may incur and pay Lender Group  Expenses to the extent Agent reasonably deems necessary or appropriate for the performance and  fulfillment of its functions, powers, and obligations pursuant to the Loan Documents, including  reasonable and documented out-of-pocket court costs, attorneys’ fees and expenses, fees and expenses of  financial accountants, advisors, consultants, and appraisers, costs of collection by outside collection  





 






   -115-      agencies, auctioneer fees and expenses, and costs of security guards or insurance premiums paid to  maintain the Collateral, whether or not Borrowers are obligated to reimburse Agent or Lenders for such  expenses pursuant to this Agreement or otherwise.  Agent is authorized and directed to deduct and retain  sufficient amounts from payments or proceeds of the Collateral received by Agent to reimburse Agent for  such out-of-pocket costs and expenses prior to the distribution of any amounts to Lenders (or Bank  Product Providers).  In the event Agent is not reimbursed for such reasonable and documented costs and  expenses by the Loan Parties and their Subsidiaries, each Lender hereby agrees that it is and shall be  obligated to pay to Agent such Lender’s ratable share thereof.  Whether or not the transactions  contemplated hereby are consummated, each of the Lenders, on a ratable basis, shall indemnify and  defend the Agent-Related Persons (to the extent not reimbursed by or on behalf of Borrowers and without  limiting the obligation of Borrowers to do so) from and against any and all Indemnified Liabilities;  provided, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of  such Indemnified Liabilities resulting solely from such Person’s gross negligence or willful misconduct  nor shall any Lender be liable for the obligations of any Defaulting Lender in failing to make a Revolving  Loan or other extension of credit hereunder.  Without limitation of the foregoing, each Lender shall  reimburse Agent upon demand for such Lender’s ratable share of any costs or out of pocket expenses  (including attorneys, accountants, advisors, and consultants fees and expenses) incurred by Agent in  connection with the preparation, execution, delivery, administration, modification, amendment, or  enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect  of rights or responsibilities under, this Agreement or any other Loan Document to the extent that Agent is  not reimbursed for such expenses by or on behalf of Borrowers.  The undertaking in this Section shall  survive the payment of all Obligations hereunder and the resignation or replacement of Agent.  15.8 Agent in Individual Capacity.  Wells Fargo and its Affiliates may make loans to, issue  letters of credit for the account of, accept deposits from, provide Bank Products to, acquire Equity  Interests in, and generally engage in any kind of banking, trust, financial advisory, underwriting, or other  business with any Loan Party and its Subsidiaries and Affiliates and any other Person party to any Loan  Document as though Wells Fargo were not Agent hereunder, and, in each case, without notice to or  consent of the other members of the Lender Group.  The other members of the Lender Group  acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be  deemed to acknowledge) that, pursuant to such activities, Wells Fargo or its Affiliates may receive  information regarding a Loan Party or its Affiliates or any other Person party to any Loan Documents that  is subject to confidentiality obligations in favor of such Loan Party or such other Person and that prohibit  the disclosure of such information to the Lenders (or Bank Product Providers), and the Lenders  acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be  deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such  confidentiality obligations, which waiver Agent will use its reasonable best efforts to obtain), Agent shall  not be under any obligation to provide such information to them.  The terms “Lender” and “Lenders”  include Wells Fargo in its individual capacity.  15.9 Successor Agent.  Agent may resign as Agent upon 30 days (ten days if an Event of  Default has occurred and is continuing) prior written notice to the Lenders (unless such notice is waived  by the Required Lenders) and Borrowers (unless such notice is waived by Borrowers or a Default or  Event of Default has occurred and is continuing) and without any notice to the Bank Product Providers.   If Agent resigns under this Agreement, the Required Lenders shall be entitled, with (so long as no Event  of Default has occurred and is continuing) the consent of Borrowers (such consent not to be unreasonably  withheld, delayed, or conditioned), appoint a successor Agent for the Lenders (and the Bank Product  Providers).  If, at the time that Agent’s resignation is effective, it is acting as Issuing Bank or the Swing  Lender, such resignation shall also operate to effectuate its resignation as Issuing Bank or the Swing  





 






   -116-      Lender, as applicable, and it shall automatically be relieved of any further obligation to issue Letters of  Credit, or to make Swing Loans.  If no successor Agent is appointed prior to the effective date of the  resignation of Agent, Agent may appoint, after consulting with the Lenders and Borrowers, a successor  Agent.  If Agent has materially breached or failed to perform any material provision of this Agreement or  of applicable law, the Required Lenders may agree in writing to remove and replace Agent with a  successor Agent from among the Lenders with (so long as no Event of Default has occurred and is  continuing) the consent of Borrowers (such consent not to be unreasonably withheld, delayed, or  conditioned).  In any such event, upon the acceptance of its appointment as successor Agent hereunder,  such successor Agent shall succeed to all the rights, powers, and duties of the retiring Agent and the term  “Agent” shall mean such successor Agent and the retiring Agent’s appointment, powers, and duties as  Agent shall be terminated.  After any retiring Agent’s resignation hereunder as Agent, the provisions of  this Section 15 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was  Agent under this Agreement.  If no successor Agent has accepted appointment as Agent by the date which  is 30 days following a retiring Agent’s notice of resignation, the retiring Agent’s resignation shall  nevertheless thereupon become effective and the Lenders shall perform all of the duties of Agent  hereunder until such time, if any, as the Lenders appoint a successor Agent as provided for above.  15.10 Lender in Individual Capacity.  Any Lender and its respective Affiliates may make  loans to, issue letters of credit for the account of, accept deposits from, provide Bank Products to, acquire  Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or  other business with any Loan Party and its Subsidiaries and Affiliates and any other Person party to any  Loan Documents as though such Lender were not a Lender hereunder without notice to or consent of the  other members of the Lender Group (or the Bank Product Providers).  The other members of the Lender  Group acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall  be deemed to acknowledge) that, pursuant to such activities, such Lender and its respective Affiliates may  receive information regarding a Loan Party or its Affiliates or any other Person party to any Loan  Documents that is subject to confidentiality obligations in favor of such Loan Party or such other Person  and that prohibit the disclosure of such information to the Lenders, and the Lenders acknowledge (and by  entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge)  that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which  waiver such Lender will use its reasonable best efforts to obtain), such Lender shall not be under any  obligation to provide such information to them.  15.11 Collateral Matters.  (a) The Lenders hereby irrevocably authorize (and by entering into a Bank Product  Agreement, each Bank Product Provider shall be deemed to authorize) Agent to release any Lien on any  Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by the Loan  Parties and their Restricted Subsidiaries of all of the Obligations, (ii) constituting property being sold or  disposed of if a release is required or desirable in connection therewith and if Borrowers certify to Agent  that the sale or disposition is permitted under Section 6.4 (and Agent may rely conclusively on any such  certificate, without further inquiry), (iii) constituting property in which no Loan Party or any of its  Restricted Subsidiaries owned any interest at the time Agent’s Lien was granted nor at any time  thereafter, (iv) constituting property leased or licensed to a Loan Party or its Restricted Subsidiaries under  a lease or license that has expired or is terminated in a transaction permitted under this Agreement, (v)  constituting property of a former Loan Party, all of the Equity Interests of which are sold or otherwise  disposed of in a transaction permitted by this Agreement, or (vi) in connection with a credit bid or  purchase authorized under this Section 15.11, or (vi) in connection with a credit bid or purchase  authorized under this Section 15.11.  The Loan Parties and the Lenders hereby irrevocably authorize (and  





 






   -117-      by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize)  Agent, based upon the instruction of the Required Lenders, to (a) consent to the sale of, credit bid, or  purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at  any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of the  Bankruptcy Code, (b) credit bid or purchase (either directly or indirectly through one or more entities) all  or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of  the Code, including pursuant to Sections 9-610 or 9-620 of the Code, or (c) credit bid or purchase (either  directly or indirectly through one or more entities) all or any portion of the Collateral at any other sale or  foreclosure conducted or consented to by Agent in accordance with applicable law in any judicial action  or proceeding or by the exercise of any legal or equitable remedy.  In connection with any such credit bid  or purchase, (i) the Obligations owed to the Lenders and the Bank Product Providers shall be entitled to  be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated  claims being estimated for such purpose if the fixing or liquidation thereof would not impair or unduly  delay the ability of Agent to credit bid or purchase at such sale or other disposition of the Collateral and,  if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the  ability of Agent to credit bid at such sale or other disposition, then such claims shall be disregarded, not  credit bid, and not entitled to any interest in the Collateral that is the subject of such credit bid or  purchase) and the Lenders and the Bank Product Providers whose Obligations are credit bid shall be  entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to  the aggregate amount of Obligations so credit bid) in the Collateral that is the subject of such credit bid or  purchase (or in the Equity Interests of the any entities that are used to consummate such credit bid or  purchase), and (ii) Agent, based upon the instruction of the Required Lenders, may accept non-cash  consideration, including debt and equity securities issued by any entities used to consummate such credit  bid or purchase and in connection therewith Agent may reduce the Obligations owed to the Lenders and  the Bank Product Providers (ratably based upon the proportion of their Obligations credit bid in relation  to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash  consideration; provided, that Bank Product Obligations not entitled to the application set forth in Section  2.4(b)(iii)(J) shall not be entitled to be, and shall not be, credit bid, or used in the calculation of the ratable  interest of the Lenders and Bank Product Providers in the Obligations which are credit bid.  Except as  provided above, Agent will not execute and deliver a release of any Lien on any Collateral without the  prior written authorization of (y) if the release is of all or substantially all of the Collateral, all of the  Lenders (without requiring the authorization of the Bank Product Providers), or (z) otherwise, the  Required Lenders (without requiring the authorization of the Bank Product Providers).  Upon request by  Agent or Borrowers at any time, the Lenders will (and if so requested, the Bank Product Providers will)  confirm in writing Agent’s authority to release any such Liens on particular types or items of Collateral  pursuant to this Section 15.11; provided, that (1) anything to the contrary contained in any of the Loan  Documents notwithstanding, Agent shall not be required to execute any document or take any action  necessary to evidence such release on terms that, in Agent’s opinion, could expose Agent to liability or  create any obligation or entail any consequence other than the release of such Lien without recourse,  representation, or warranty, and (2) such release shall not in any manner discharge, affect, or impair the  Obligations or any Liens (other than those expressly released) upon (or obligations of Borrowers in  respect of) any and all interests retained by any Borrower, including, the proceeds of any sale, all of  which shall continue to constitute part of the Collateral.  Each Lender further hereby irrevocably  authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed  to irrevocably authorize) Agent, at its option and in its sole discretion, to subordinate (by contract or  otherwise) any Lien granted to or held by Agent on any property under any Loan Document (a) to the  holder of any Permitted Lien on such property if such Permitted Lien secures purchase money  Indebtedness (including Capitalized Lease Obligations) which constitute Permitted Indebtedness and  (b) to the extent Agent has the authority under this Section 15.11 to release its Lien on such property.   





 






   -118-      Notwithstanding the provisions of this Section 15.11, Agent shall be authorized, without the consent of  any Lender and without the requirement that an asset sale consisting of the sale, transfer or other  disposition having occurred, to release any security interest in any building, structure or improvement  located in an area determined by the Federal Emergency Management Agency to have special flood  hazards.  (b) Agent shall have no obligation whatsoever to any of the Lenders (or the Bank  Product Providers) (i) to verify or assure that the Collateral exists or is owned by a Loan Party or any of  its Restricted Subsidiaries or is cared for, protected, or insured or has been encumbered, (ii) to verify or  assure that Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or  enforced or are entitled to any particular priority, (iii) to verify or assure that any particular items of  Collateral meet the eligibility criteria applicable in respect thereof, (iv) to impose, maintain, increase,  reduce, implement, or eliminate any particular reserve hereunder or to determine whether the amount of  any reserve is appropriate or not, or (v) to exercise at all or in any particular manner or under any duty of  care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or  available to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect  of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions  contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given  Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no  other duty or liability whatsoever to any Lender (or Bank Product Provider) as to any of the foregoing,  except as otherwise expressly provided herein.  (c) Lenders hereby authorize Agent to enter into the Wells Letter Agreement or other  subordination or intercreditor agreement or arrangement permitted under this Agreement and Lenders  acknowledge that any such subordination or intercreditor agreement is binding upon Lenders.  15.12 Restrictions on Actions by Lenders; Sharing of Payments.  (a) Each of the Lenders agrees that it shall not, without the express written consent  of Agent, and that it shall, to the extent it is lawfully entitled to do so and not otherwise prohibited by the  terms of the agreements of such Lender with a Loan Party, upon the written request of Agent, set off  against the Obligations, any amounts owing by such Lender to any Loan Party or its Subsidiaries or any  deposit accounts of any Loan Party or its Subsidiaries now or hereafter maintained with such Lender.   Each of the Lenders further agrees that it shall not, unless specifically requested to do so in writing by  Agent, take or cause to be taken any action, including, the commencement of any legal or equitable  proceedings to enforce any Loan Document against any Borrower or any Guarantor or to foreclose any  Lien on, or otherwise enforce any security interest in, any of the Collateral.  (b) If, at any time or times any Lender shall receive (i) by payment, foreclosure,  setoff, or otherwise, any proceeds of Collateral or any payments with respect to the Obligations, except  for any such proceeds or payments received by such Lender from Agent pursuant to the terms of this  Agreement, or (ii) payments from Agent in excess of such Lender’s Pro Rata Share of all such  distributions by Agent, such Lender promptly shall (A) turn the same over to Agent, in kind, and with  such endorsements as may be required to negotiate the same to Agent, or in immediately available funds,  as applicable, for the account of all of the Lenders and for application to the Obligations in accordance  with the applicable provisions of this Agreement, or (B) purchase, without recourse or warranty, an  undivided interest and participation in the Obligations owed to the other Lenders so that such excess  payment received shall be applied ratably as among the Lenders in accordance with their Pro Rata Shares;  provided, that to the extent that such excess payment received by the purchasing party is thereafter  





 






   -119-      recovered from it, those purchases of participations shall be rescinded in whole or in part, as applicable,  and the applicable portion of the purchase price paid therefor shall be returned to such purchasing party,  but without interest except to the extent that such purchasing party is required to pay interest in  connection with the recovery of the excess payment.  15.13 Agency for Perfection.  Agent hereby appoints each other Lender (and each Bank  Product Provider) as its agent (and each Lender hereby accepts (and by entering into a Bank Product  Agreement, each Bank Product Provider shall be deemed to accept) such appointment) for the purpose of  perfecting Agent’s Liens in assets which, in accordance with Article 8 or Article 9, as applicable, of the  Code can be perfected by possession or control.  Should any Lender obtain possession or control of any  such Collateral, such Lender shall notify Agent thereof, and, promptly upon Agent’s request therefor shall  deliver possession or control of such Collateral to Agent or in accordance with Agent’s instructions.  15.14 Payments by Agent to the Lenders.  All payments to be made by Agent to the Lenders  (or Bank Product Providers) shall be made by bank wire transfer of immediately available funds pursuant  to such wire transfer instructions as each party may designate for itself by written notice to Agent.   Concurrently with each such payment, Agent shall identify whether such payment (or any portion thereof)  represents principal, premium, fees, or interest of the Obligations.  15.15 Concerning the Collateral and Related Loan Documents.  Each member of the Lender  Group authorizes and directs Agent to enter into this Agreement and the other Loan Documents.  Each  member of the Lender Group agrees (and by entering into a Bank Product Agreement, each Bank Product  Provider shall be deemed to agree) that any action taken by Agent in accordance with the terms of this  Agreement or the other Loan Documents relating to the Collateral and the exercise by Agent of its powers  set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be  binding upon all of the Lenders (and such Bank Product Provider).  15.16 Field Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports  and Information.  By becoming a party to this Agreement, each Lender:  (a) is deemed to have requested that Agent furnish such Lender, promptly after it  becomes available, a copy of each field examination report respecting any Loan Party or its Restricted  Subsidiaries (each, a “Report”) prepared by or at the request of Agent, and Agent shall so furnish each  Lender with such Reports,  (b) expressly agrees and acknowledges that Agent does not (i) make any  representation or warranty as to the accuracy of any Report, and (ii) shall not be liable for any information  contained in any Report,  (c) expressly agrees and acknowledges that the Reports are not comprehensive audits  or examinations, that Agent or other party performing any field examination will inspect only specific  information regarding the Loan Parties and their Restricted Subsidiaries and will rely significantly upon  Borrowers’ and its Restricted Subsidiaries’ books and records, as well as on representations of  Borrowers’ personnel,  (d) agrees to keep all Reports and other material, non-public information regarding  the Loan Parties and their Restricted Subsidiaries and their operations, assets, and existing and  contemplated business plans in a confidential manner in accordance with Section 17.9, and  





 






   -120-      (e) without limiting the generality of any other indemnification provision contained  in this Agreement, agrees:  (i) to hold Agent and any other Lender preparing a Report harmless from any  action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender may  reach or draw from any Report in connection with any loans or other credit accommodations that the  indemnifying Lender has made or may make to Borrowers, or the indemnifying Lender’s participation in,  or the indemnifying Lender’s purchase of, a loan or loans of Borrowers, and (ii) to pay and protect, and  indemnify, defend and hold Agent, and any such other Lender preparing a Report harmless from and  against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including,  attorneys’ fees and costs) incurred by Agent and any such other Lender preparing a Report as the direct or  indirect result of any third parties who might obtain all or part of any Report through the indemnifying  Lender.  In addition to the foregoing,  (x) any Lender may from time to time request of Agent in writing that Agent  provide to such Lender a copy of any report or document provided by any Loan Party or its Restricted  Subsidiaries to Agent that has not been contemporaneously provided by such Loan Party or such Restricted  Subsidiary to such Lender, and, upon receipt of such request, Agent promptly shall provide a copy of same  to such Lender, (y) to the extent that Agent is entitled, under any provision of the Loan Documents, to  request additional reports or information from any Loan Party or its Restricted Subsidiaries, any Lender  may, from time to time, reasonably request Agent to exercise such right as specified in such Lender’s notice  to Agent, whereupon Agent promptly shall request of Borrowers the additional reports or information  reasonably specified by such Lender, and, upon receipt thereof from such Loan Party or such Restricted  Subsidiary, Agent promptly shall provide a copy of same to such Lender, and (z) any time that Agent  renders to Borrowers a statement regarding the Loan Account, Agent shall send a copy of such statement  to each Lender.  15.17 Several Obligations; No Liability.  Notwithstanding that certain of the Loan Documents  now or hereafter may have been or will be executed only by or in favor of Agent in its capacity as such,  and not by or in favor of the Lenders, any and all obligations on the part of Agent (if any) to make any  credit available hereunder shall constitute the several (and not joint) obligations of the respective Lenders  on a ratable basis, according to their respective Commitments, to make an amount of such credit not to  exceed, in principal amount, at any one time outstanding, the amount of their respective Commitments.   Nothing contained herein shall confer upon any Lender any interest in, or subject any Lender to any  liability for, or in respect of, the business, assets, profits, losses, or liabilities of any other Lender.  Each  Lender shall be solely responsible for notifying its Participants of any matters relating to the Loan  Documents to the extent any such notice may be required, and no Lender shall have any obligation, duty,  or liability to any Participant of any other Lender.  Except as provided in Section 15.7, no member of the  Lender Group shall have any liability for the acts of any other member of the Lender Group.  No Lender  shall be responsible to any Borrower or any other Person for any failure by any other Lender (or Bank  Product Provider) to fulfill its obligations to make credit available hereunder, nor to advance for such  Lender (or Bank Product Provider) or on its behalf, nor to take any other action on behalf of such Lender  (or Bank Product Provider) hereunder or in connection with the financing contemplated herein.  16. WITHHOLDING TAXES.  16.1 Payments.  All payments made by any Loan Party under any Loan Document will be  made free and clear of, and without deduction or withholding for, any Taxes, except as otherwise required  by applicable law, and in the event any deduction or withholding of Taxes is required by applicable law  (as determined in the good faith judgement of any applicable Loan Party), the applicable Loan Party shall  make the requisite withholding and promptly pay over to the applicable Governmental Authority the  





 






   -121-      withheld tax.   Furthermore, if any such Tax is an Indemnified Taxes or an Indemnified Tax is so levied  or imposed, the Loan Parties agree to pay the full amount of such Indemnified Taxes and such additional  amounts as may be necessary so that every payment of all amounts due under this Agreement or other  Loan Document, including any amount paid pursuant to this Section 16.1 after withholding or deduction  for or on account of any Indemnified Taxes, will not be less than the amount provided for herein.  The  Loan Parties will promptly pay any Other Taxes or reimburse Agent for such Other Taxes upon Agent's  demand.  The Loan Parties shall jointly and severally indemnify each Indemnified Person (as defined in  Section 10.3) (collectively a “Tax Indemnitee”) for the full amount of Indemnified Taxes arising in  connection with this Agreement or any other Loan Document (including any Indemnified Taxes imposed  or asserted on, or attributable to, amounts payable under this Section 16) imposed on, or paid by, such  Tax Indemnitee and all reasonable costs and expenses related thereto (including reasonable and  documented out-of-pocket fees and disbursements of attorneys and other tax professionals), whether or  not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental  Authority (other than Indemnified Taxes and additional amounts that a court of competent jurisdiction  finally determines to have resulted from the gross negligence or willful misconduct of such Tax  Indemnitee).  The obligations of the Loan Parties, Lenders, Agent and Participants under this Section 16  shall survive the termination of this Agreement, the resignation and replacement of Agent, and the  repayment of the Obligations.  As soon as reasonably practicable after any payment of any Taxes by any  Loan Party to a Governmental Authority pursuant to this Section 16.1, the applicable Loan Party shall  deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority  evidencing such payment, a copy of the return reporting such payment or other evidence of such payment  reasonably satisfactory to the Agent.    16.2 Exemptions.  (a) Any Lender that is a U.S. Person shall deliver to the Administrative Borrower  and the Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and  from time to time thereafter upon the reasonable request of the Administrative Borrower or the Agent),  executed copies of IRS Form W-9 (or any successor form) certifying that such Lender is exempt from  U.S. federal backup withholding Tax.  (b) If a Lender or Participant is not a U.S. Person, such Lender or Participant shall  deliver to Agent (or, in the case of a Participant, to the Lender granting the participation only) and  Administrative Borrower on behalf of all Borrowers one of the following on or prior to the date on which  such Lender or Participant becomes a Lender or Participant under this Agreement (or, in the case of a  Participant, to the Lender granting the participation only) (and from time to time thereafter upon the  reasonable request of the Administrative Borrower or the Agent) ), whichever of the following is  applicable:  (i) if such Lender or Participant is entitled to claim an exemption from  United States withholding tax pursuant to the portfolio interest exception, (A) a statement of the Lender  or Participant, signed under penalty of perjury, substantially in the form of Exhibit D-1 that it is not a (I) a  “bank” as described in Section 881(c)(3)(A) of the IRC, (II) a 10% shareholder of any Borrower (within  the meaning of Section 871(h)(3)(B) of the IRC), or (III) a controlled foreign described in Section  881(c)(3)(C) of the IRC (a “U.S. Tax Compliance Certificate”), and (B) a properly completed and  executed IRS Form W-8BEN or Form W-8BEN-E;  (ii) if such Lender or Participant is entitled to claim an exemption from, or a  reduction of, withholding tax under a United States tax treaty, (I) with respect to payments of interest  





 






   -122-      under any Loan Document, a properly completed and executed copy of IRS Form W-8BEN or Form W- 8BEN-E, as applicable establishing an exemption from, or reduction of U.S. federal withholding tax  pursuant to the “interest” article of such tax treaty and (II) with respect to any other applicable payments  under any Loan Document, IRS Form W-8BEN or W-8BEN-E (or any successor form) establishing an  exemption from, or reduction of, U.S. federal withholding tax pursuant to the “business profits” or “other  income” article of such tax treaty;  (iii) if such Lender or Participant is entitled to claim that interest paid under  this Agreement is exempt from United States withholding tax because it is effectively connected with a  United States trade or business of such Lender, a properly completed and executed copy of IRS Form W- 8ECI; or  (iv) if such Lender or Participant is entitled to claim that interest paid under  this Agreement is exempt from United States withholding tax because such Lender or Participant serves  as an intermediary, a properly completed and executed copy of IRS Form W-8IMY (or any successor  form), accompanied by IRS Form W-8ECI (or any successor form), IRS Form W-8BEN or W-8BEN-E  (or any successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or  Exhibit D-3, IRS Form W-9 (or any successor form), and/or other certification documents from each  beneficial owner, as applicable; provided that if the Lender or Participant is a partnership and one or more  direct or indirect partners of such Lender or Participant are claiming the portfolio interest exemption, such  Lender or Participant may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit  D-4 on behalf of each such direct and indirect partner.  (c) Each Lender or Participant shall provide new forms (or successor forms) upon  the expiration or obsolescence of any previously delivered forms and promptly notify Agent and  Administrative Borrower (or, in the case of a Participant, to the Lender granting the participation only) of  any change in circumstances which would modify or render invalid any claimed exemption or reduction.  (d) If a Lender or Participant claims an exemption from or reduction of withholding  tax in a jurisdiction other than the United States, such Lender or such Participant agrees with and in favor  of Agent and Borrowers, to deliver to Agent and Administrative Borrower (or, in the case of a Participant,  to the Lender granting the participation only) any such form or forms, as may be required under the laws  of such jurisdiction as a condition to exemption from, or reduction of, foreign withholding or backup  withholding tax upon becoming a party to this Agreement, but only if such Lender or such Participant is  legally able to deliver such forms, or the providing of or delivery of such forms in the Lender's reasonable  judgment would not subject such Lender to any material unreimbursed cost or expense or materially  prejudice the legal or commercial position of such Lender (or its Affiliates); provided, further, that  nothing in this Section 16.2(d) shall require a Lender or Participant to disclose any information that it  deems to be confidential (including its tax returns).  Each Lender and each Participant shall provide new  forms (or successor forms) upon the expiration or obsolescence of any previously delivered forms and  promptly notify Agent and Administrative Borrower (or, in the case of a Participant, to the Lender  granting the participation only) of any change in circumstances which would modify or render invalid any  claimed exemption or reduction.  (e) If a Lender or Participant claims exemption from, or reduction of, withholding  tax and such Lender or Participant sells, assigns, grants a participation in, or otherwise transfers all or part  of the Obligations of Borrowers to such Lender or Participant, such Lender or Participant agrees to notify  Agent and Administrative Borrower (or, in the case of a sale of a participation interest, to the Lender  granting the participation only) of the percentage amount in which it is no longer the beneficial owner of  





 






   -123-      Obligations of Borrowers to such Lender or Participant.  To the extent of such percentage amount, Agent  and Administrative Borrower will treat such Lender’s or such Participant’s documentation provided  pursuant to Section 16.2(a), 16.2(b) or 16.2(c) as no longer valid.  With respect to such percentage  amount, such Participant or Assignee shall provide new documentation, pursuant to Section 16.2(a),  16.2(b) or 16.2(c), if applicable.  Borrowers agree that each Participant shall be entitled to the benefits of  this Section 16 with respect to its participation in any portion of the Commitments and the Obligations so  long as such Participant complies with the obligations set forth in this Section 16 with respect thereto.  (f) If a payment made to a Lender under any Loan Document would be subject to  U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the  applicable requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the IRC,  as applicable), such Lender shall deliver to Agent (or, in the case of a Participant, to the Lender granting  the participation only) at the time or times prescribed by law and at such time or times reasonably  requested by Agent (or, in the case of a Participant, the Lender granting the participation) such  documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the  IRC) and such additional documentation reasonably requested by Agent (or, in the case of a Participant,  the Lender granting the participation) as may be necessary for Agent or Borrowers to comply with their  obligations under FATCA and to determine that such Lender has complied with such Lender’s  obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely  for purposes of this clause (e), “FATCA” shall include any amendments made to FATCA after the date of  this Agreement.  (g) Any Lender or Participant that is not a U.S. Person shall, to the extent it is legally  entitled to do so, deliver to the 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 Lender or Participant becomes a  Lender or Participant under this Agreement (and from time to time thereafter upon the reasonable request  of the Administrative Borrower or the Agent), executed copies of any form (other than those described in  Section 16.2(b) above) prescribed by applicable 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 law to permit the Administrative Borrower or the Agent to determine the  withholding or deduction required to be made.   (h) On or before the date that Wells Fargo (and any successor or replacement Agent)  becomes the Agent hereunder, it shall deliver to the Administrative Borrower a duly executed copy of  either (i) IRS Form W-9 (or any successor form) or (ii) a U.S. branch withholding certificate on IRS Form  W-8IMY (or any successor form) evidencing its agreement with the Borrower to be treated as a U.S.  Person (with respect to amounts received on account of any Lender) and IRS Form W-8ECI (or any  successor form) (with respect to amounts received on its own account).  16.3 Reductions.  (a) If a Lender or a Participant is subject to an applicable withholding tax, Agent (or,  in the case of a Participant, the Lender granting the participation) may withhold from any payment to such  Lender or such Participant an amount equivalent to the applicable withholding tax.  If the forms or other  documentation required by Section 16.2(a), 16.2(b) or 16.2(c) are not delivered to Agent (or, in the case  of a Participant, to the Lender granting the participation), then Agent (or, in the case of a Participant, to  the Lender granting the participation) may withhold from any payment to such Lender or such Participant  not providing such forms or other documentation an amount equivalent to the applicable withholding tax.  





 






   -124-      (b) If the IRS or any other Governmental Authority of the United States or other  jurisdiction asserts a claim that Agent (or, in the case of a Participant, to the Lender granting the  participation) did not properly withhold tax from amounts paid to or for the account of any Lender or any  Participant due to a failure on the part of the Lender or any Participant (because the appropriate form was  not delivered, was not properly executed, or because such Lender failed to notify Agent (or such  Participant failed to notify the Lender granting the participation) of a change in circumstances which  rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason) such  Lender shall indemnify and hold Agent harmless (or, in the case of a Participant, such Participant shall  indemnify and hold the Lender granting the participation harmless) for all amounts paid, directly or  indirectly, by Agent (or, in the case of a Participant, to the Lender granting the participation), as tax or  otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on the  amounts payable to Agent (or, in the case of a Participant, to the Lender granting the participation only)  under this Section 16, together with all costs and expenses (including attorneys’ fees and expenses).  The  obligation of the Lenders and the Participants under this subsection shall survive the payment of all  Obligations and the resignation or replacement of Agent.  16.4 Refunds.  If Agent or a Lender determines, in its sole discretion, that it has received a  refund of any Indemnified Taxes to which the Loan Parties have paid additional amounts pursuant to this  Section 16, it shall pay over such refund to Administrative Borrower on behalf of the Loan Parties (but  only to the extent of payments made, or additional amounts paid, by the Loan Parties under this Section  16 with respect to Indemnified Taxes giving rise to such a refund), net of all out-of-pocket expenses of  Agent or such Lender and without interest (other than any interest paid by the applicable Governmental  Authority with respect to such a refund); provided, that the Loan Parties, upon the request of Agent or  such Lender, agrees to repay the amount paid over to the Loan Parties (plus any penalties, interest or other  charges, imposed by the applicable Governmental Authority, other than such penalties, interest or other  charges imposed as a result of the willful misconduct or gross negligence of Agent or Lender hereunder  as finally determined by a court of competent jurisdiction) to Agent or such Lender in the event Agent or  such Lender is required to repay such refund to such Governmental Authority.  Notwithstanding anything  in this Agreement to the contrary, this Section 16.4 shall not be construed to require Agent or any Lender  to make available its tax returns (or any other information which it deems confidential) to Loan Parties or  any other Person or require Agent or any Lender to pay any amount to an indemnifying party pursuant to  Section 16.4, the payment of which would place Agent or such Lender (or their Affiliates) in a less  favorable net after-Tax position than such Person would have been in if the Tax subject to  indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and  the indemnification payments or additional amounts with respect to such Tax had never been paid.  17. GENERAL PROVISIONS.  17.1 Effectiveness.  This Agreement shall be binding and deemed effective when executed by  Parent, each Borrower, Agent, and each Lender whose signature is provided for on the signature pages  hereof.  17.2 Section Headings.  Headings and numbers have been set forth herein for convenience  only.  Unless the contrary is compelled by the context, everything contained in each Section applies  equally to this entire Agreement.  17.3 Interpretation.  Neither this Agreement nor any uncertainty or ambiguity herein shall be  construed against the Lender Group or Parent or any Borrower, whether under any rule of construction or  otherwise.  On the contrary, this Agreement has been reviewed by all parties and shall be construed and  





 






   -125-      interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes  and intentions of all parties hereto.  17.4 Severability of Provisions.  Each provision of this Agreement shall be severable from  every other provision of this Agreement for the purpose of determining the legal enforceability of any  specific provision.  17.5 Bank Product Providers.  Each Bank Product Provider in its capacity as such shall be  deemed a third party beneficiary hereof and of the provisions of the other Loan Documents for purposes  of any reference in a Loan Document to the parties for whom Agent is acting.  Agent hereby agrees to act  as agent for such Bank Product Providers and, by virtue of entering into a Bank Product Agreement, the  applicable Bank Product Provider shall be automatically deemed to have appointed Agent as its agent and  to have accepted the benefits of the Loan Documents.  It is understood and agreed that the rights and  benefits of each Bank Product Provider under the Loan Documents consist exclusively of such Bank  Product Provider’s being a beneficiary of the Liens and security interests (and, if applicable, guarantees)  granted to Agent and the right to share in payments and collections out of the Collateral as more fully set  forth herein. In addition, each Bank Product Provider, by virtue of entering into a Bank Product  Agreement, shall be automatically deemed to have agreed that Agent shall have the right, but shall have  no obligation, to establish, maintain, relax, or release reserves in respect of the Bank Product Obligations  and that if reserves are established there is no obligation on the part of Agent to determine or insure  whether the amount of any such reserve is appropriate or not.  In connection with any such distribution of  payments or proceeds of Collateral, Agent shall be entitled to assume no amounts are due or owing to any  Bank Product Provider unless such Bank Product Provider has provided a written certification (setting  forth a reasonably detailed calculation) to Agent as to the amounts that are due and owing to it and such  written certification is received by Agent a reasonable period of time prior to the making of such  distribution.  Agent shall have no obligation to calculate the amount due and payable with respect to any  Bank Products, but may rely upon the written certification of the amount due and payable from the  applicable Bank Product Provider.  In the absence of an updated certification, Agent shall be entitled to  assume that the amount due and payable to the applicable Bank Product Provider is the amount last  certified to Agent by such Bank Product Provider as being due and payable (less any distributions made  to such Bank Product Provider on account thereof).  Borrowers may obtain Bank Products from any Bank  Product Provider, although Borrowers are not required to do so.  Each Borrower acknowledges and agrees  that no Bank Product Provider has committed to provide any Bank Products and that the providing of  Bank Products by any Bank Product Provider is in the sole and absolute discretion of such Bank Product  Provider.  Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no  provider or holder of any Bank Product shall have any voting or approval rights hereunder (or be deemed  a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the  Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than  in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other  Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or  Guarantors.  17.6 Debtor-Creditor Relationship.  The relationship between the Lenders and Agent, on the  one hand, and the Loan Parties, on the other hand, is solely that of creditor and debtor.  No member of the  Lender Group has (or shall be deemed to have) any fiduciary relationship or duty to any Loan Party  arising out of or in connection with the Loan Documents or the transactions contemplated thereby, and  there is no agency or joint venture relationship between the members of the Lender Group, on the one  hand, and the Loan Parties, on the other hand, by virtue of any Loan Document or any transaction  contemplated therein.  





 






   -126-      17.7 Counterparts; Electronic Execution.  This Agreement may be executed in any number  of counterparts and by different parties on separate counterparts, each of which, when executed and  delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but  one and the same Agreement.  Execution of any such counterpart may be by means of (a) an electronic  signature that complies with the federal Electronic Signatures in Global and National Commerce Act, as  in effect from time to time, state enactments of the Uniform Electronic Transactions Act, as in effect from  time to time, or any other relevant and applicable electronic signatures law; (b) an original manual  signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed,  scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and  admissibility in evidence as an original manual signature.  Agent reserves the right, in its discretion, to  accept, deny, or condition acceptance of any electronic signature on this Agreement.  Any party  delivering an executed counterpart of this Agreement by faxed, scanned or photocopied manual signature  shall also deliver an original manually executed counterpart, but the failure to deliver an original  manually executed counterpart shall not affect the validity, enforceability and binding effect of this  Agreement.  The foregoing shall apply to each other Loan Document, and any notice delivered hereunder  or thereunder, mutatis mutandis.  17.8 Revival and Reinstatement of Obligations; Certain Waivers.  (a) If any member of the Lender Group or any Bank Product Provider repays,  refunds, restores, or returns in whole or in part, any payment or property (including any proceeds of  Collateral) previously paid or transferred to such member of the Lender Group or such Bank Product  Provider in full or partial satisfaction of any Obligation or on account of any other obligation of any Loan  Party under any Loan Document or any Bank Product Agreement, because the payment, transfer, or the  incurrence of the obligation so satisfied is asserted or declared to be void, voidable, or otherwise  recoverable under any law relating to creditors’ rights, including provisions of the Bankruptcy Code  relating to fraudulent transfers, preferences, or other voidable or recoverable obligations or transfers  (each, a “Voidable Transfer”), or because such member of the Lender Group or Bank Product Provider  elects to do so on the reasonable advice of its counsel in connection with a claim that the payment,  transfer, or incurrence is or may be a Voidable Transfer, then, as to any such Voidable Transfer, or the  amount thereof that such member of the Lender Group or Bank Product Provider elects to repay, restore,  or return (including pursuant to a settlement of any claim in respect thereof), and as to all reasonable and  documented out-of-pocket costs, expenses, and attorneys’ fees of such member of the Lender Group or  Bank Product Provider related thereto, (i) the liability of the Loan Parties with respect to the amount or  property paid, refunded, restored, or returned will automatically and immediately be revived, reinstated,  and restored and will exist, and (ii) Agent’s Liens securing such liability shall be effective, revived, and  remain in full force and effect, in each case, as fully as if such Voidable Transfer had never been  made.  If, prior to any of the foregoing, (A) Agent’s Liens shall have been released or terminated, or (B)  any provision of this Agreement shall have been terminated or cancelled, Agent’s Liens, or  such provision of this Agreement, shall be reinstated in full force and effect and such prior release,  termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the  obligation of any Loan Party in respect of such liability or any Collateral securing such liability. This  provision shall survive the termination of this Agreement and the repayment in full of the Obligations.  (b) [Reserved].  17.9 Confidentiality.  





 






   -127-      (a) Agent and Lenders each individually (and not jointly or jointly and severally)  agree that material, non-public information regarding the Loan Parties and their Subsidiaries, their  operations, assets, and existing and contemplated business plans (“Confidential Information”) shall be  treated by Agent and the Lenders in a confidential manner, and shall not be disclosed by Agent and the  Lenders to Persons who are not parties to this Agreement, except:  (i) to attorneys for and other advisors,  accountants, auditors, and consultants to any member of the Lender Group  and to employees, directors  and officers of any member of the Lender Group (the Persons in this clause (i), “Lender Group  Representatives”) on a “need to know” basis in connection with this Agreement and the transactions  contemplated hereby and on a confidential basis, (ii) to Subsidiaries and Affiliates of any member of the  Lender Group (including the Bank Product Providers); provided, that any such Subsidiary or Affiliate  shall have agreed to receive such information hereunder subject to the terms of this Section 17.9, (iii) as  may be required by regulatory authorities so long as such authorities are informed of the confidential  nature of such information, (iv) as may be required by statute, decision, or judicial or administrative  order, rule, or regulation; provided, that (x) prior to any disclosure under this clause (iv), the disclosing  party agrees to provide Borrowers with prior notice thereof, to the extent that it is practicable to do so and  to the extent that the disclosing party is permitted to provide such prior notice to Borrowers pursuant to  the terms of the applicable statute, decision, or judicial or administrative order, rule, or regulation and (y)  any disclosure under this clause (iv) shall be limited to the portion of the Confidential Information as may  be required by such statute, decision, or judicial or administrative order, rule, or regulation, (v) as may be  agreed to in advance in writing by Borrowers, (vi) as requested or required by any Governmental  Authority pursuant to any subpoena or other legal process; provided, that (x) prior to any disclosure under  this clause (vi) the disclosing party agrees to provide Borrowers with prior written notice thereof, to the  extent that it is practicable to do so and to the extent that the disclosing party is permitted to provide such  prior written notice to Borrowers pursuant to the terms of the subpoena or other legal process and (y) any  disclosure under this clause (vi) shall be limited to the portion of the Confidential Information as may be  required by such Governmental Authority pursuant to such subpoena or other legal process, (vii) as to any  such information that is or becomes generally available to the public (other than as a result of prohibited  disclosure by Agent or the Lenders or the Lender Group Representatives), (viii) in connection with any  assignment, participation  or pledge of any Lender’s interest under this Agreement; provided, that prior to  receipt of Confidential Information any such assignee, participant, or pledgee shall have agreed in writing  to receive such Confidential Information either subject to the terms of this Section 17.9 or pursuant to  confidentiality requirements substantially similar to those contained in this Section 17.9 (and such Person  may disclose such Confidential Information to Persons employed or engaged by them as described in  clause (i) above), (ix) in connection with any litigation or other adversary proceeding involving parties  hereto which such litigation or adversary proceeding involves claims related to the rights or duties of such  parties under this Agreement or the other Loan Documents; provided, that prior to any disclosure to any  Person (other than any Loan Party, Agent, any Lender, any of their respective Affiliates, or their  respective counsel) under this clause (ix) with respect to litigation involving any Person (other than any  Borrower, Agent, any Lender, any of their respective Affiliates, or their respective counsel), the  disclosing party agrees to provide Borrowers with prior written notice thereof, and (x) in connection with,  and to the extent reasonably necessary for, the exercise of any secured creditor remedy under this  Agreement or under any other Loan Document.  (b) Anything in this Agreement to the contrary notwithstanding, Agent may disclose  information concerning the terms and conditions of this Agreement and the other Loan Documents to loan  syndication and pricing reporting services or in its marketing or promotional materials, with such  information to consist of deal terms and other information customarily found in such publications or  marketing or promotional materials and may otherwise use the name, logos, and other insignia of any  





 






   -128-      Borrower or the other Loan Parties and the Commitments provided hereunder in any “tombstone” or other  advertisements, on its website or in other marketing materials of Agent.  (c) Each Loan Party agrees that Agent may make materials or information provided  by or on behalf of Borrowers hereunder (collectively, “Borrower Materials”) available to the Lenders by  posting the Communications on IntraLinks, SyndTrak or a substantially similar secure electronic  transmission system (the “Platform”).  The Platform is provided “as is” and “as available.”  Agent does  not warrant the accuracy or completeness of the Borrower Materials, or the adequacy of the Platform and  expressly disclaim liability for errors or omissions in the communications.  No warranty of any kind,  express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose,  non-infringement of third party rights or freedom from viruses or other code defects, is made by Agent in  connection with the Borrower Materials or the Platform.  In no event shall Agent or any of the Agent- Related Persons have any liability to the Loan Parties, any Lender or any other person for damages of any  kind, including direct or indirect, special, incidental or consequential damages, losses or expenses  (whether in tort, contract or otherwise) arising out of any Loan Party’s or Agent’s transmission of  communications through the Internet, except to the extent the liability of such person is found in a final  non-appealable judgment by a court of competent jurisdiction to have resulted from such person’s gross  negligence or willful misconduct.  Each Loan Party further agrees that certain of the Lenders may be  “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with  respect to the Loan Parties or their securities) (each, a “Public Lender”).  The Loan Parties shall be  deemed to have authorized Agent and its Affiliates and the Lenders to treat Borrower Materials marked  “PUBLIC” or otherwise at any time filed with the SEC as not containing any material non-public  information with respect to the Loan Parties or their securities for purposes of United States federal and  state securities laws.  All Borrower Materials marked “PUBLIC” are permitted to be made available  through a portion of the Platform designated as “Public Investor” (or another similar term).  Agent and its  Affiliates and the Lenders shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”  or that are not at any time filed with the SEC as being suitable only for posting on a portion of the  Platform not marked as “Public Investor” (or such other similar term).  17.10 Survival.  All representations and warranties made by the Loan Parties in the Loan  Documents and in the certificates or other instruments delivered in connection with or pursuant to this  Agreement or any other Loan Document shall be considered to have been relied upon by the other parties  hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans  and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on  its behalf and notwithstanding that Agent, Issuing Bank, or any Lender may have had notice or  knowledge of any Default or Event of Default or incorrect representation or warranty at the time any  credit is extended hereunder, and shall continue in full force and effect as long as the principal of, or any  accrued interest on, any Loan or any fee or any other amount payable under this Agreement is outstanding  or unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or been  terminated.  17.11 Patriot Act; Due Diligence.  Each Lender that is subject to the requirements of the  Patriot Act hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is  required to obtain, verify and record information that identifies each Loan Party, which information  includes the name and address of each Loan Party and other information that will allow such Lender to  identify each Loan Party in accordance with the Patriot Act.  In addition, Agent and each Lender shall  have the right to periodically conduct due diligence on all Loan Parties, their senior management and key  principals and legal and beneficial owners.  Each Loan Party agrees to cooperate in respect of the conduct  





 






   -129-      of such due diligence and further agrees that the reasonable costs and charges for any such due diligence  by Agent shall constitute Lender Group Expenses hereunder and be for the account of Borrowers.  17.12 Integration.  This Agreement, together with the other Loan Documents, reflects the  entire understanding of the parties with respect to the transactions contemplated hereby and shall not be  contradicted or qualified by any other agreement, oral or written, before the date hereof.  The foregoing to  the contrary notwithstanding, all Bank Product Agreements, if any, are independent agreements governed  by the written provisions of such Bank Product Agreements, which will remain in full force and effect,  unaffected by any repayment, prepayments, acceleration, reduction, increase, or change in the terms of  any credit extended hereunder, except as otherwise expressly provided in such Bank Product Agreement.  17.13 Montana as Agent for Borrowers.  Each Borrower hereby irrevocably appoints  Montana as the borrowing agent and attorney-in-fact for all Borrowers (the “Administrative Borrower”)  which appointment shall remain in full force and effect unless and until Agent shall have received prior  written notice signed by each Borrower that such appointment has been revoked and that another  Borrower has been appointed Administrative Borrower.  Each Borrower hereby irrevocably appoints and  authorizes Administrative Borrower (a) to provide Agent with all notices with respect to Revolving Loans  and Letters of Credit obtained for the benefit of any Borrower and all other notices and instructions under  this Agreement and the other Loan Documents (and any notice or instruction provided by Administrative  Borrower shall be deemed to be given by Borrowers hereunder and shall bind each Borrower), (b) to  receive notices and instructions from members of the Lender Group (and any notice or instruction  provided by any member of the Lender Group to Administrative Borrower in accordance with the terms  hereof shall be deemed to have been given to each Borrower), and (c) to take such action as  Administrative Borrower deems appropriate on its behalf to obtain Revolving Loans and Letters of Credit  and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this  Agreement.  It is understood that the handling of the Loan Account and Collateral in a combined fashion,  as more fully set forth herein, is done solely as an accommodation to Borrowers in order to utilize the  collective borrowing powers of Borrowers in the most efficient and economical manner and at their  request, and that Lender Group shall not incur liability to any Borrower as a result hereof.  Each Borrower  expects to derive benefit, directly or indirectly, from the handling of the Loan Account and the Collateral  in a combined fashion since the successful operation of each Borrower is dependent on the continued  successful performance of the integrated group.  To induce the Lender Group to do so, and in  consideration thereof, each Borrower hereby jointly and severally agrees to indemnify each member of  the Lender Group and hold each member of the Lender Group harmless against any and all liability,  expense, loss or claim of damage or injury, made against the Lender Group by any Borrower or by any  third party whosoever, arising from or incurred by reason of (i) the handling of the Loan Account and  Collateral of Borrowers as herein provided, or (ii) the Lender Group’s relying on any instructions of  Administrative Borrower, except that Borrowers will have no liability to the relevant Agent-Related  Person or Lender-Related Person under this Section 17.13 with respect to any liability that has been  finally determined by a court of competent jurisdiction to have resulted solely from the gross negligence  or willful misconduct of such Agent-Related Person or Lender-Related Person, as the case may be.  17.14 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.   Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement  or understanding among any such parties, each party hereto acknowledges that any liability of any  Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured,  may be subject to the write-down and conversion powers of the applicable Resolution Authority and  agrees and consents to, and acknowledges and agrees to be bound by:   





 






   -130-      (a) the application of any Write-Down and Conversion Powers by the applicable  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party  hereto that is an Affected Financial Institution; and  (b) the effects of any Bail-in Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge  institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments  of ownership will be accepted by it in lieu of any rights with respect to any such liability under this  Agreement or any other Loan Document; or  (iii) the variation of the terms of such liability in connection with the exercise  of the write-down and conversion powers of the applicable Resolution Authority.  17.15 Acknowledgement Regarding Any Supported QFCs.  To the extent that the Loan  Documents provide support, through a guarantee or otherwise, for Hedge Agreements or any other  agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a  “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of  the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the  Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated  thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit  Support (with the provisions below applicable notwithstanding that the Loan Documents and any  Supported QFC may in fact be stated to be governed by the laws of the State of New York or of the  United States or any other state of the United States): In the event a Covered Entity that is party to a  Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special  Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and  any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights  in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be  effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime  if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in  property) were governed by the laws of the United States or a state of the United States.  In the event a  Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S.  Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such  Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are  permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S.  Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of  the United States or a state of the United States.  Without limitation of the foregoing, it is understood and  agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect  the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.   17.16 Erroneous Payments.  (a) Each Lender, each Issuing Bank, each other Bank Product Provider and any other  party hereto hereby severally agrees that if (i) Agent notifies (which such notice shall be conclusive  absent manifest error) such Lender or Issuing Bank or any Bank Product Provider (or the Lender which is  an Affiliate of a Lender, Issuing Bank or Bank Product Provider) or any other Person that has received  





 






   -131-      funds from Agent or any of its Affiliates, either for its own account or on behalf of a Lender, Issuing  Bank or Bank Product Provider (each such recipient, a “Payment Recipient”) that Agent has determined  in its sole discretion that any funds received by such Payment Recipient were erroneously transmitted to,  or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to  such Payment Recipient) or (ii) any Payment Recipient receives any payment from Agent (or any of its  Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of  payment, prepayment or repayment sent by Agent (or any of its Affiliates) with respect to such payment,  prepayment or repayment, as applicable, (y) that was not preceded or accompanied by a notice of  payment, prepayment or repayment sent by Agent (or any of its Affiliates) with respect to such payment,  prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise becomes aware  was transmitted or received in error or by mistake (in whole or in part) then, in each case, an error in  payment shall be presumed to have been made (any such amounts specified in clauses (i) or (ii) of this  Section 17.16(a), whether received as a payment, prepayment or repayment of principal, interest, fees,  distribution or otherwise; individually and collectively, an “Erroneous Payment”), then, in each case, such  Payment Recipient is deemed to have knowledge of such error at the time of its receipt of such Erroneous  Payment; provided that nothing in this Section shall require Agent to provide any of the notices specified  in clauses (i) or (ii) above. Each Payment Recipient agrees that it shall not assert any right or claim to any  Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off or recoupment  with respect to any demand, claim or counterclaim by Agent for the return of any Erroneous Payments,  including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.   (b) Without limiting the immediately preceding clause (a), each Payment Recipient  agrees that, in the case of clause (a)(ii) above, it shall promptly notify Agent in writing of such  occurrence.  (c) In the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall  at all times remain the property of Agent and shall be segregated by the Payment Recipient and held in  trust for the benefit of Agent, and upon demand from Agent such Payment Recipient shall (or, shall cause  any Person who received any portion of an Erroneous Payment on its behalf to), promptly, but in all  events no later than one Business Day thereafter, return to Agent the amount of any such Erroneous  Payment (or portion thereof) as to which such a demand was made in same day funds and in the currency  so received, together with interest thereon in respect of each day from and including the date such  Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount  is repaid to Agent at the greater of the Federal Funds Rate and a rate determined by Agent in accordance  with banking industry rules on interbank compensation from time to time in effect.  (d) In the event that an Erroneous Payment (or portion thereof) is not recovered by  Agent for any reason, after demand therefor by Agent in accordance with immediately preceding clause  (c), from any Lender that is a Payment Recipient or an Affiliate of a Payment Recipient (such  unrecovered amount as to such Lender, an “Erroneous Payment Return Deficiency”), then at the sole  discretion of Agent and upon Agent’s written notice to such Lender (i) such Lender shall be deemed to  have made a cashless assignment of the full face amount of the portion of its Loans (but not its  Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment  Impacted Loans”) to Agent or, at the option of Agent, Agent’s applicable lending affiliate (such assignee,  the “Agent Assignee”) in an amount that is equal to the Erroneous Payment Return Deficiency (or such  lesser amount as Agent may specify) (such assignment of the Loans (but not Commitments) of the  Erroneous Payment Impacted Loans, the “Erroneous Payment Deficiency Assignment”) plus any accrued  and unpaid interest on such assigned amount, without further consent or approval of any party hereto and  without any payment by Agent Assignee as the assignee of such Erroneous Payment Deficiency  





 






   -132-      Assignment.  Without limitation of its rights hereunder, following the effectiveness of the Erroneous  Payment Deficiency Assignment, Agent may make a cashless reassignment to the applicable assigning  Lender of any Erroneous Payment Deficiency Assignment at any time by written notice to the applicable  assigning Lender and upon such reassignment all of the Loans assigned pursuant to such Erroneous  Payment Deficiency Assignment shall be reassigned to such Lender without any requirement for payment  or other consideration.  The parties hereto acknowledge and agree that (1) any assignment contemplated  in this clause (d) shall be made without any requirement for any payment or other consideration paid by  the applicable assignee or received by the assignor, (2) the provisions of this clause (d) shall govern in the  event of any conflict with the terms and conditions of Section 13 and (3) Agent may reflect such  assignments in the Register without further consent or action by any other Person.  (e) Each party hereto hereby agrees that (x) in the event an Erroneous Payment (or  portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment  (or portion thereof) for any reason, Agent (1) shall be subrogated to all the rights of such Payment  Recipient and (2) is authorized to set off, net and apply any and all amounts at any time owing to such  Payment Recipient under any Loan Document, or otherwise payable or distributable by Agent to such  Payment Recipient from any source, against any amount due to Agent under this Section 17.16 or under  the indemnification provisions of this Agreement, (y) the receipt of an Erroneous Payment by a Payment  Recipient shall not for the purpose of this Agreement be treated as a payment, prepayment, repayment,  discharge or other satisfaction of any Obligations owed by the Borrowers or any other Loan Party, except,  in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such  Erroneous Payment that is, comprised of funds received by Agent from the Borrowers or any other Loan  Party for the purpose of making for a payment on the Obligations and (z) to the extent that an Erroneous  Payment was in any way or at any time credited as payment or satisfaction of any of the Obligations, the  Obligations or any part thereof that were so credited, and all rights of the Payment Recipient, as the case  may be, shall be reinstated and continue in full force and effect as if such payment or satisfaction had  never been received, except to the extent such Erroneous Payment is comprised of funds received by  Agent from, or on behalf of (including through the exercise of remedied under any Loan Document), the  Borrowers or any other Loan Party for the purpose of making for a payment on the Obligations.  This  Section 17.16 shall not be interpreted to increase (or accelerate the due date for), or have the effect of  increasing (or accelerating the due date for), the Obligations of the Loan Parties relative to the amount  (and/or timing for payment) of the Obligations that would have been payable had any Erroneous Payment  not been made by the Administrative Agent.    (f) Each party’s obligations under this Section 17.16 shall survive the resignation or  replacement of Agent or any transfer of right or obligations by, or the replacement of, a Lender, the  termination of the Commitments or the repayment, satisfaction or discharge of all Obligations (or any  portion thereof) under any Loan Document.  (g) The provisions of this Section 17.16 to the contrary notwithstanding, (i) nothing  in this Section 17.16 will constitute a waiver or release of any claim of any party hereunder arising from  any Payment Recipient’s receipt of an Erroneous Payment and (ii) there will only be deemed to be a  recovery of the Erroneous Payment to the extent that Agent has received payment from the Payment  Recipient in immediately available funds the Erroneous Payment Return, whether directly from the  Payment Recipient, as a result of the exercise by Agent of its rights of subrogation or set off as set forth  above in clause (e) or as a result of the receipt by Agent Assignee of a payment of the outstanding  principal balance of the Loans assigned to Agent Assignee pursuant to an Erroneous Payment Deficiency  Assignment, but excluding any other amounts in respect thereof (it being agreed that any payments of  interest, fees, expenses or other amounts (other than principal) received by Agent Assignee in respect of  





 






   -133-      the Loans assigned to Agent Assignee pursuant to an Erroneous Payment Deficiency Assignment shall be  the sole property of Agent Assignee and shall not constitute a recovery of the Erroneous Payment).  [Signature pages to follow].  





 






    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be  executed and delivered as of the date first above written.     BORROWERS: MONTANA RENEWABLES, LLC         By: /s/ Vincent Donargo___________   Name: Vincent Donargo______________   Title: Executive Vice President and Chief Financial  Officer_____________________        PARENT: MONTANA RENEWABLES HOLDINGS LLC         By: /s/ Vincent Donargo____________   Name: Vincent Donargo______________   Title: Executive Vice President and Chief Financial  Officer________________________                 





 






     WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Agent and as a Lender         By: /s/ Andrew Dilley______________   Name: Andrew Dilley_________________    Its Authorized Signatory         





 






    EXHIBIT A-1    FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT      This ASSIGNMENT AND ACCEPTANCE AGREEMENT (“Assignment  Agreement”) is entered into as of      between     (“Assignor”)  and     (“Assignee”).  Reference is made to the Agreement  described in Annex I hereto (the “Credit Agreement”).  Capitalized terms used herein and not otherwise  defined shall have the meanings ascribed to them in the Credit Agreement.    1. In accordance with the terms and conditions of Section 13 of the Credit Agreement,  the Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from  the Assignor, that interest in and to the Assignor's rights and obligations under the Loan Documents as of  the date hereof with respect to the Obligations owing to the Assignor, and Assignor’s portion of the  Commitments, all to the extent specified on Annex I.    2. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner  of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim  and (ii) it has full power and authority, and has taken all action necessary, to execute and deliver this  Assignment Agreement and to consummate the transactions contemplated hereby; (b) makes no  representation or warranty and assumes no responsibility with respect to (i) any statements, representations  or warranties made in or in connection with the Loan Documents, or (ii) the execution, legality, validity,  enforceability, genuineness, sufficiency or value of the Loan Documents or any other instrument or  document furnished pursuant thereto; (c) makes no representation or warranty and assumes no  responsibility with respect to the financial condition of any Borrower or any Guarantor or the performance  or observance by any Borrower or any Guarantor of any of their respective obligations under the Loan  Documents or any other instrument or document furnished pursuant thereto, and (d) represents and warrants  that the amount set forth as the Purchase Price on Annex I represents the amount owed by Borrowers to  Assignor with respect to Assignor’s share of the Term Loan and the Revolving Loans assigned hereunder,  as reflected on Assignor’s books and records.    3. The Assignee (a) confirms that it has received copies of the Credit Agreement and  the other Loan Documents, together with copies of the financial statements referred to therein and such  other documents and information as it has deemed appropriate to make its own credit analysis and decision  to enter into this Assignment Agreement; (b) agrees that it will, independently and without reliance upon  Agent, Assignor, or any other Lender, based upon such documents and information as it shall deem  appropriate at the time, continue to make its own credit decisions in taking or not taking any action under  the Loan Documents; (c) [confirms that it is an Eligible Transferee;] (d) appoints and authorizes the Agent  to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are  delegated to Agent by the terms thereof, together with such powers as are reasonably incidental thereto; (e)  agrees that it will perform in accordance with their terms all of the obligations which by the terms of the  Loan Documents are required to be performed by it as a Lender; [and (f) attaches the forms prescribed by  the Internal Revenue Service of the United States certifying as to the Assignee's status for purposes of  determining exemption from United States withholding taxes with respect to all payments to be made to  the Assignee under the Credit Agreement or such other documents as are necessary to indicate that all such  payments are subject to such rates at a rate reduced by an applicable tax treaty.]    4. Following the execution of this Assignment Agreement by the Assignor and  Assignee, the Assignor will deliver this Assignment Agreement to the Agent for recording by the Agent.   The effective date of this Assignment (the “Settlement Date”) shall be the latest to occur of (a) the date of  





 






    the execution and delivery hereof by the Assignor and the Assignee, (b) the receipt by Agent for its sole  and separate account a processing fee in the amount of $3,500 (if required by the Credit Agreement), (c)  the receipt of any required consent of the Agent, and (d) the date specified in Annex I.    5. As of the Settlement Date (a) the Assignee shall be a party to the Credit Agreement  and, to the extent of the interest assigned pursuant to this Assignment Agreement, have the rights and  obligations of a Lender thereunder and under the other Loan Documents, and (b) the Assignor shall, to the  extent of the interest assigned pursuant to this Assignment Agreement, relinquish its rights and be released  from its obligations under the Credit Agreement and the other Loan Documents, provided, however, that  nothing contained herein shall release any assigning Lender from obligations that survive the termination  of the Credit Agreement, including such assigning Lender’s obligations under Article 15 and Section  17.9(a) of the Credit Agreement.    6. Upon the Settlement Date, Assignee shall pay to Assignor the Purchase Price (as  set forth in Annex I).  From and after the Settlement Date, Agent shall make all payments that are due and  payable to the holder of the interest assigned hereunder (including payments of principal, interest, fees and  other amounts) to Assignor for amounts which have accrued up to but excluding the Settlement Date and  to Assignee for amounts which have accrued from and after the Settlement Date.  On the Settlement Date,  Assignor shall pay to Assignee an amount equal to the portion of any interest, fee, or any other charge that  was paid to Assignor prior to the Settlement Date on account of the interest assigned hereunder and that are  due and payable to Assignee with respect thereto, to the extent that such interest, fee or other charge relates  to the period of time from and after the Settlement Date.    7. This Assignment Agreement may be executed in counterparts and by the parties  hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all  of which shall together constitute one and the same instrument.  This Assignment Agreement may be  executed and delivered by telecopier or other facsimile transmission all with the same force and effect as if  the same were a fully executed and delivered original manual counterpart.    8. THIS ASSIGNMENT AGREEMENT SHALL BE SUBJECT TO THE  PROVISIONS REGARDING CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER, AND  JUDICIAL REFERENCE SET FORTH IN SECTION 12 OF THE CREDIT AGREEMENT, AND SUCH  PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.                                     





 






    IN WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement and  Annex I hereto to be executed by their respective officers, as of the first date written above.    [NAME OF ASSIGNOR],    as Assignor      By:          Name:   Title:      [NAME OF ASSIGNEE],    as Assignee      By:         Name:   Title:      ACCEPTED THIS ____ DAY OF  _______________    WELLS FARGO BANK, NATIONAL  ASSOCIATION, a national banking   association, as Agent, as Swing Lender and as Issuing Bank    By:        Name:         Title:             MONTANA RENEWABLES, LLC, a Delaware limited   liability company, as Borrower      By:        Name:         Title:                            





 






    ANNEX FOR ASSIGNMENT AND ACCEPTANCE    ANNEX I    1.    Borrower:  MONTANA RENEWABLES, LLC, a Delaware limited liability company and its  Subsidiaries from time to time party to the Credit Agreement     2.        Name and Date of Credit Agreement:    Credit Agreement dated as of November 2, 2022 (as amended, restated,  supplemented, or otherwise modified from time to time, the “Credit Agreement”)  by and among Montana Renewables Holdings LLC, a Delaware limited liability  company, as parent (“Parent”), Borrower, the lenders party thereto as “Lenders”,  and Wells Fargo Bank, National Association, a national banking association  (“Wells Fargo”), as administrative agent for each member of the Lender Group  and the Bank Product Providers.    3.        Date of Assignment Agreement:             4.        Amounts:          a.           Assigned Amount of Revolver Commitment  $      b.           Assigned Amount of Revolving Loans   $      b.           Assigned Amount of Term Loan     $      5.       Settlement Date:            6.       Purchase Price      $_____________    7.       Notice and Payment Instructions, etc.      Assignee: Assignor:                                   





 






    EXHIBIT B-1    FORM OF BORROWING BASE CERTIFICATE    [See Attached.]    





 






    EXHIBIT C-1    FORM OF COMPLIANCE CERTIFICATE      [on Administrative Borrower’s letterhead]      To: Wells Fargo Bank, National Association  [14241 Dallas Pkwy #1300  Dallas, TX 75254]  Attn:  ________________________    Re: Compliance Certificate dated ____________  __, 20__    Ladies and Gentlemen:    Reference is hereby made to that certain Credit Agreement, dated as of November 2, 2022  (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”),  by and among the lenders identified on the signatures pages thereto (each of such lenders, together with its  successors and permitted assigns, is referred to hereinafter as a “Lender”, as that term is hereinafter further  defined), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as  administrative agent for each member of the Lender Group and the Bank Product Providers (in such  capacity, together with its successors and assigns in such capacity, “Agent”), MONTANA RENEWABLES  HOLDINGS LLC, a Delaware limited liability company, as parent (“Parent”), MONTANA  RENEWABLES, LLC, a Delaware limited liability company, as borrower (“Montana”, and  together with  those additional Persons that are joined as a party thereto by executing the form of Joinder attached thereto  as Exhibit J-1 (each, a “Borrower” and individually and collectively, jointly and severally, the  “Borrowers”). Capitalized terms used herein, but not specifically defined herein, shall have the meanings  ascribed to them in the Credit Agreement.    Pursuant to Section 5.1 of the Credit Agreement, the undersigned officer of Administrative  Borrower hereby certifies as of the date hereof that:     1. The financial information of Borrowers and its Subsidiaries furnished in Schedule  1 attached hereto has been prepared in accordance with GAAP (except, in the case of unaudited financial  statements, for year-end audit adjustments and the lack of footnotes), and fairly presents in all material  respects the financial condition of Borrower and its Subsidiaries as of the date set forth therein.    2. Such officer has reviewed the terms of the Credit Agreement and has made, or  caused to be made under his/her supervision, a review in reasonable detail of the transactions and financial  condition of Borrower and its Subsidiaries during the accounting period covered by the financial statements  delivered pursuant to Section 5.1 of the Credit Agreement.    3. Such review has not disclosed the existence on and as of the date hereof, and the  undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that  constitutes a Default or Event of Default, except for such conditions or events listed on Schedule 2 attached  hereto, in each case specifying the nature and period of existence thereof and what action Borrower and its  Subsidiaries have taken, are taking, or propose to take with respect thereto.    





 






    4. Except as set forth on Schedule 3 attached hereto, the representations and  warranties of Borrowers and its Subsidiaries set forth in the Credit Agreement and the other Loan  Documents are true and correct in all material respects (except that such materiality qualifier shall not be  applicable to any representations and warranties that already are qualified or modified by materiality in the  text thereof) on and as of the date hereof (except to the extent that such representations and warranties relate  solely to an earlier date, in which case such representations and warranties shall be true and correct in all  material respects (except that such materiality qualifier shall not be applicable to any representations and  warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date.     5. As of the date hereof,  Borrower and its Subsidiaries are in compliance with the  applicable covenants contained in Section 7 of the Credit Agreement, to the extent required thereby, as  demonstrated on Schedule 4 hereof.    [Signature Page Follows]          





 






    IN WITNESS WHEREOF, this Compliance Certificate is executed by the undersigned this ____  day of _______________, 20___.        MONTANA RENEWABLES LLC,   a Delaware limited liability company, as Administrative  Borrower    By:        Name:         Title:                      





 






    SCHEDULE 1    Financial Information         





 






    SCHEDULE 2    Default or Event of Default         





 






    SCHEDULE 3    Representations and Warranties         





 






    SCHEDULE 4    Financial Covenants  1. Minimum Liquidity.      Until the date which is six (6) months from the Closing Date, Borrowers will at all times maintain  a minimum amount of Liquidity equal to 20% of the Line Cap.     2. Fixed Charge Coverage Ratio.    Commencing on the date which is six (6) months after the Closing Date and continuing until the  termination of all of the Commitments and the payment in full of the Obligations, during any Covenant  Testing Period, each Borrower covenants and agrees that Borrowers will maintain a Fixed Charge Coverage  Ratio, calculated based on the most recent financial statements delivered  pursuant to Section 5.12 for each  12 month period ending on the first day of any Covenant Testing Period and the last day of each fiscal  month occurring until the end of any Covenant Testing Period (including the last day thereof), in each case  of at least 1.00 to 1.00.  





 






    EXHIBIT D-1    [FORM OF]    U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)     Reference is hereby made to the Credit Agreement dated as of November 2, 2022 (as  amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among  WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as  administrative agent for each member of the Lender Group and the Bank Product Providers (in such  capacity, together with its successors and assigns in such capacity, “Agent”), MONTANA  RENEWABLES HOLDINGS LLC, a Delaware limited liability company (“Parent”), MONTANA  RENEWABLES, LLC, a Delaware limited liability company (“Montana”), and each lender and issuing  bank from time to time party thereto.     Pursuant to the provisions of Section 16.2 of the Credit Agreement, the undersigned hereby  certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing  such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning  of Section 881(c)(3)(A) of the IRC, (iii) it is not a “10 percent shareholder” of any Borrower within the  meaning of Section 871(h)(3)(B) of the IRC, and (iv) it is not a “controlled foreign corporation” described  in Section 881(c)(3)(C) of the IRC.     The undersigned has furnished the Agent and the Borrower with a certificate of its non- U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E.  By executing this certificate, the  undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall  promptly so inform the Borrower and the Agent, and (2) the undersigned shall have at all times furnished  the Borrower and the Agent with a properly completed and currently effective certificate in either the  calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years  preceding such payments.     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.    [NAME OF LENDER]        By:_________________________________  Name:  Title:    Date:  ________ __, 20[  ]          





 






    EXHIBIT D-2    [FORM OF]    U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)    Reference is hereby made to the Credit Agreement dated as of November 2, 2022 (as  amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among  WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as  administrative agent for each member of the Lender Group and the Bank Product Providers (in such  capacity, together with its successors and assigns in such capacity, “Agent”), MONTANA  RENEWABLES HOLDINGS LLC, a Delaware limited liability company (“Parent”), MONTANA  RENEWABLES, LLC, a Delaware limited liability company (“Montana”), and each lender and issuing  bank from time to time party thereto.    Pursuant to the provisions of Section 16.2 of the Credit Agreement, the undersigned hereby  certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is  providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the IRC, (iii)  it is not a “10 percent shareholder” of any Borrower within the meaning of Section 871(h)(3)(B) of the IRC  and (iv) it is not a “controlled foreign corporation” described in Section 881(c)(3)(C) of the IRC.    The undersigned has furnished its participating Lender with a certificate of its non-U.S.  Person status on IRS Form W-8BEN or IRS Form W-8BEN-E.  By executing this certificate, the  undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall  promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such  Lender with a properly completed and currently effective certificate in either the calendar year in which  each payment is to be made to the undersigned, or in either of the two calendar years preceding such  payments.    Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.    [NAME OF PARTICIPANT]        By:_________________________________  Name:  Title:    Date:  ________ __, 20[  ]        





 






    EXHIBIT D-3    [FORM OF]    U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)    Reference is hereby made to the Credit Agreement dated as of November 2, 2022 (as  amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among  WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as  administrative agent for each member of the Lender Group and the Bank Product Providers (in such  capacity, together with its successors and assigns in such capacity, “Agent”), MONTANA  RENEWABLES HOLDINGS LLC, a Delaware limited liability company (“Parent”), MONTANA  RENEWABLES, LLC, a Delaware limited liability company (“Montana”), and each lender and issuing  bank from time to time party thereto.    Pursuant to the provisions of Section 16.2 of the Credit Agreement, the undersigned hereby  certifies that (i) it is the sole record owner of the participation in respect of which it is providing this  certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation,  (iii) with respect such participation, neither the undersigned nor any of its direct or indirect  partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary  course of its trade or business within the meaning of Section 881(c)(3)(A) of the IRC, (iv) none of its direct  or indirect partners/members is a “10 percent shareholder” of any Borrower within the meaning of Section  871(h)(3)(B) of the IRC and (v) none of its direct or indirect partners/members is a “controlled foreign  corporation” described in Section 881(c)(3)(C) of the IRC.    The undersigned has furnished its participating Lender with IRS Form W-8IMY  accompanied by one of the following forms from each of its partners/members that is claiming the portfolio  interest exemption:  (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY  accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s  beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the  undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall  promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with  a properly completed and currently effective certificate in either the calendar year in which each payment  is to be made to the undersigned, or in either of the two calendar years preceding such payments.    Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.    [NAME OF PARTICIPANT]        By:_________________________________  Name:  Title:    Date:  ________ __, 20[  ]          





 






    EXHIBIT D-4    [FORM OF]    U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)      Reference is hereby made to the Credit Agreement dated as of November 2, 2022 (as  amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among  WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as  administrative agent for each member of the Lender Group and the Bank Product Providers (in such  capacity, together with its successors and assigns in such capacity, “Agent”), MONTANA  RENEWABLES HOLDINGS LLC, a Delaware limited liability company (“Parent”), MONTANA  RENEWABLES, LLC, a Delaware limited liability company (“Montana”), and each lender and issuing  bank from time to time party thereto.    Pursuant to the provisions of Section 16.2 of the Credit Agreement, the undersigned hereby  certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s))  in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole  beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the  extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned  nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement  entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of  the IRC, (iv) none of its direct or indirect partners/members is a “10 percent shareholder” of any Borrower  within the meaning of Section 871(h)(3)(B) of the IRC and (v) none of its direct or indirect  partners/members is a “controlled foreign corporation” described in Section 881(c)(3)(C) of the IRC.    The undersigned has furnished the Agent and the Borrower with IRS Form W-8IMY  accompanied by one of the following forms from each of its partners/members that is claiming the portfolio  interest exemption:  (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY  accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s  beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the  undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall  promptly so inform the Borrower and the Agent, and (2) the undersigned shall have at all times furnished  the Borrower and the Agent with a properly completed and currently effective certificate in either the  calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years  preceding such payments.    Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.    [NAME OF LENDER]      By:_________________________________  Name:  Title:    Date:  ________ __, 20[  ]  





 






    EXHIBIT J-1    [FORM OF] JOINDER AGREEMENT    This JOINDER AGREEMENT (this “Agreement”), is entered into as of ______ __, 20__, by and  among ___________, a ________ (“New Borrower”), and WELLS FARGO BANK, NATIONAL  ASSOCIATION, a national banking association (“Wells Fargo”), as administrative agent for each member  of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and  assigns in such capacity, “Agent”).     W I T N E S S E T H:     WHEREAS, pursuant to that certain Credit Agreement, dated as of November 2, 2022 (as  amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by  and among the lenders identified on the signatures pages thereto (each of such lenders, together with its  successors and permitted assigns, is referred to hereinafter as a “Lender”, as that term is hereinafter further  defined), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as  administrative agent for each member of the Lender Group and the Bank Product Providers (in such  capacity, together with its successors and assigns in such capacity, “Agent”), MONTANA RENEWABLES  HOLDINGS LLC, a Delaware limited liability company, as parent (“Parent”), MONTANA  RENEWABLES, LLC, a Delaware limited liability company, as borrower (“Montana”, and  together with  those additional Persons that are joined as a party thereto by executing the form of Joinder attached thereto  as Exhibit J-1 (each, a “Borrower” and individually and collectively, jointly and severally, the  “Borrowers”), the Lender Group has agreed to make or issue Loans, Letters of Credit and other certain  financial accommodations thereunder;      WHEREAS, initially capitalized terms used but not defined herein shall have the meanings  ascribed to such terms in the Credit Agreement;     WHEREAS, New Borrower is required to become a party to the Credit Agreement by, among  other things, executing and delivering this Agreement to Agent; and      WHEREAS, New Borrower has determined that the execution, delivery and performance of this  Agreement directly benefit, and are within the corporate purposes and in the best interests of, New  Borrower, by virtue of the financial accommodations available to New Borrower from time to time pursuant  to the terms and conditions of the Credit Agreement.     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein  contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby  acknowledged, each of the parties hereto hereby agrees as follows:     1. Joinder of New Borrower to the Credit Agreement.  By its execution of this Agreement,  New Borrower hereby (a) agrees that from and after the date of this Agreement it shall be a party to the  Credit Agreement as a “Borrower” and shall be bound by all of the terms, conditions, covenants, agreements  and obligations set forth in the Credit Agreement, (b) accepts joint and several liability for the Obligations  pursuant to the terms of the Loan Documents, and (c) confirms that, after giving effect to the supplement  to the Schedules to the Credit Agreement provided for in Section 2 below, the representations and  warranties contained in Article 4 of the Credit Agreement are true and correct as they relate to New  Borrower as of the date of this Agreement.  New Borrower hereby agrees that each reference to a  “Borrower” or the “Borrowers” in the Credit Agreement and the other Loan Documents shall include New  





 






    Borrower.  New Borrower acknowledges that it has received a copy of the Credit Agreement and the other  Loan Documents and that it has read and understands the terms thereof.    2. Updated Schedules.  Attached as Exhibit A hereto are updated copies of each of Schedule  4.1(b) and Schedule 4.1(c)1  to the Credit Agreement revised to include all information required to be  provided therein including information with respect to New Borrower.  Each such Schedule shall be  attached to the Credit Agreement, and on and after the date hereof all references in any Loan Document to  any such Schedule to the Credit Agreement shall mean such Schedule as so amended; provided, that any  use of the term “as of the date hereof” or any term of similar import, in any provision of the Credit  Agreement relating to New Borrower or any of the information amended by such Schedule hereby, shall be  deemed to refer to the date of this Agreement.    3. Representations and Warranties of New Borrower.  New Borrower hereby represents and  warrants to Agent for the benefit of the Lender Group and the Bank Product Providers as follows:      (a) It (i) is duly organized and existing and in good standing under the laws of  the jurisdiction of its organization, (ii) is qualified to do business in any state where the failure to be so  qualified could reasonably be expected to result in a Material Adverse Effect, and (iii) has all requisite  power and authority to own and operate its properties, to carry on its business as now conducted and as  proposed to be conducted, to enter into this Agreement and the other Loan Documents to which it is made  a party and to carry out the transactions contemplated hereby and thereby.     (b) The execution, delivery, and performance by New Borrower of this  Agreement and any other Loan Document to which New Borrower is made a party (i) have been duly  authorized by all necessary action on the part of New Borrower and (ii) do not and will not (A) violate any  material provision of federal, state, or local law or regulation applicable to New Borrower or its  Subsidiaries, the Governing Documents of New Borrower or its Subsidiaries, or any order, judgment, or  decree of any court or other Governmental Authority binding on New Borrower or its Subsidiaries, (B)  conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under  any material agreement of New Borrower or its Subsidiaries where any such conflict, breach or default  could individually or in the aggregate reasonably be expected to have a Material Adverse Effect, (C) result  in or require the creation or imposition of any Lien of any nature whatsoever upon any assets of New  Borrower, other than Permitted Liens, (D) require any approval of New Borrower’s interest holders or any  approval or consent of any Person under any material agreement of New Borrower, other than consents or  approvals that have been obtained and that are still in force and effect and except, in the case of material  agreements, for consents or approvals, the failure to obtain could not individually or in the aggregate  reasonably be expected to cause a Material Adverse Effect, or (E) require any registration with, consent, or  approval of, or notice to or other action with or by, any Governmental Authority, other than registrations,  consents, approvals, notices, or other actions that have been obtained and that are still in force and effect,  and except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to  Agent for filing or recordation.    (c) This Agreement and each Loan Document to which New Borrower is a  party is the legally valid and binding obligation of New Borrower, enforceable against New Borrower in  accordance with its respective terms, except as enforcement may be limited by equitable principles or by  bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights  generally.    1   Include any additional Schedules to be updated as well.   





 






      (d) Each other representation and warranty applicable to New Borrower as a  Borrower under the Loan Documents is true, correct and complete, in all material respects (except that such  materiality qualifier shall not be applicable to any representations and warranties that already are qualified  or modified by materiality in the text thereof) on and as of the date hereof, as though made on such date  (except to the extent that such representations and warranties relate solely to an earlier date).    4. Additional Requirements.  Concurrent with the execution and delivery of this Agreement,  Agent shall have received the following, each in form and substance satisfactory to Agent:     (a) a Joinder No. __ to the Guaranty and Security Agreement, dated as of the  date hereof, by and among New Borrower and Agent (“Joinder No. __”), together with the original Equity  Interest certificates, if any, representing all of the Equity Interests of the Subsidiaries of New Borrower  required to be pledged under the Guaranty and Security Agreement and any original promissory notes of  New Borrower, accompanied by undated Equity Interest powers/transfer forms executed in blank, and the  same shall be in full force and effect;    (b) appropriate financing statement to be filed in the office of the _______  Secretary of State against New Borrower to perfect the Agent’s Liens in and to the Collateral of New  Borrower;    (c) a certificate from the Secretary of New Borrower, dated as of the date  hereof, (i) attesting to the resolutions of New Borrower’s [Board of Directors][Managers] authorizing its  execution, delivery, and performance of this Agreement and the other Loan Documents to which New  Borrower is or will become a party, (ii) authorizing officers of New Borrower to execute the same, and (iii)  attesting to the incumbency and signatures of such specific officers of New Borrower;    (d) a certificate of status with respect to New Borrower, dated as of a recent  date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of New  Borrower, which certificate shall indicate that New Borrower is in good standing in such jurisdiction;    (e) certificates of status with respect to New Borrower, dated as of a recent  date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction  of organization of New Borrower) in which the failure to be duly qualified or licensed would constitute a  Material Adverse Effect, which certificates shall indicate that New Borrower is in good standing in such  jurisdictions;     (f) copies of New Borrower’s Governing Documents, as amended, modified  or supplemented to the date hereof, certified by the Secretary of New Borrower; and    (g) evidence that New Borrower has been added to the Loan Parties’ existing  insurance policies required by Section 5.6 of the Credit Agreement;     (h) a customary opinion of counsel regarding such matters as to New  Borrower as Agent or its counsel may reasonably request, and which is otherwise in form and substance  reasonably satisfactory to Agent (it being understood that such opinion shall be limited to this Agreement,  and the documents executed or delivered in connection herewith (including the financing statement filed  against New Borrower); and    (i) such other agreements, instruments, approvals or other documents  requested by Agent prior to the date hereof in order to create, perfect and establish the first priority of, or  





 






    otherwise protect, any Lien purported to be covered by any Loan Document or otherwise to effect the intent  that New Borrower shall become bound by all of the terms, covenants and agreements contained in the  Loan Documents and that, to the extent set forth in the Credit Agreement and the Guaranty and Security  Agreement, all property and assets of New Borrower shall become Collateral for the Obligations.    5. Further Assurances.  At any time upon the reasonable request of Agent, New Borrower  shall promptly execute and deliver to Agent such Additional Documents as Agent shall reasonably request  pursuant to the Credit Agreement and the other Loan Documents, in each case in form and substance  reasonably satisfactory to Agent.     6. Notices.  Notices to New Borrower shall be given in the manner set forth for Borrowers in  Section 11 of the Credit Agreement.    7. Choice of Law and Venue; Jury Trial Waiver; Judicial Reference.  THIS AGREEMENT  SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE, JURY  TRIAL WAIVER, AND JUDICIAL REFERENCE SET FORTH IN SECTION 12 OF THE CREDIT  AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE,  MUTATIS MUTANDIS.    8. Binding Effect.  This Agreement shall be binding upon New Borrower, and the other Loan  Parties and shall inure to the benefit of the Agent and the Lenders, together with their respective successors  and permitted assigns.    9. Effect on Loan Documents.       (a) Except as contemplated to be supplemented hereby, the Credit Agreement,  the Fee Letter, the Intercompany Subordination Agreement and each other Loan Document shall continue  to be, and shall remain, in full force and effect.  Except as expressly contemplated hereby, this Agreement  shall not be deemed (i) to be a waiver of, or consent to, or a modification or amendment of any other term  or condition of the Credit Agreement, the Fee Letter, the Intercompany Subordination Agreement or any of  the instruments or agreements referred to therein, as the same may be amended or modified from time to  time.   (b) Each reference in the Credit Agreement and the other Loan Documents to  “Borrower”, “Obligor” or words of like import referring to a Borrower or an Obligor shall include and refer  to New Borrower and (b) each reference in the Credit Agreement, the Fee Letter, Intercompany  Subordination Agreement or any other Loan Document to this “Agreement”, “hereunder”, “herein”,  “hereof”, “thereunder”, “therein”, “thereof”, or words of like import referring to the Credit Agreement, the  Fee Letter, Intercompany Subordination Agreement or any other Loan Document shall mean and refer to  such agreement as supplemented by this Agreement.    10. Miscellaneous    (a) This Agreement is a Loan Document. This Agreement may be executed in  any number of counterparts and by different parties in separate counterparts, each of which, when executed  and delivered, shall be deemed to be an original, and all of which, taken together, shall constitute but one  and the same Agreement.  Delivery of an executed counterpart of this Agreement by telefacsimile or other  electronic image scan transmission (e.g., “PDF” or “tif” via email) shall be equally effective as delivery of  an original executed counterpart of this Agreement.  Any party delivering an executed counterpart of this  Agreement by telefacsimile or other electronic image scan transmission also shall deliver an original  executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not  affect the validity, enforceability, and binding effect of this Agreement.  





 






      (b) Any provision of this Agreement which is prohibited or unenforceable  shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining  provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other  jurisdiction.  Each provision of this Agreement shall be severable from every other provision of this  Agreement for the purpose of determining the legal enforceability of any specific provision.    (c) Headings and numbers have been set forth herein for convenience only.   Unless the contrary is compelled by the context, everything contained in each Section applies equally to  this entire Agreement.    (d) Neither this Agreement nor any uncertainty or ambiguity herein shall be  construed against any member of the Lender Group or New Borrower, whether under any rule of  construction or otherwise.  This Agreement has been reviewed by all parties and shall be construed and  interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and  intentions of all parties hereto.    (e) The pronouns used herein shall include, when appropriate, either gender  and both singular and plural, and the grammatical construction of sentences shall conform thereto.    (f) This Agreement shall be subject to the rules of construction set forth in  Section 1.4 of the Credit Agreement, and such rules of construction are incorporated herein by this  reference, mutatis mutandis.    [remainder of this page intentionally left blank].        





 






    IN WITNESS WHEREOF, New Borrower and Agent have caused this Agreement to be duly  executed by its authorized officer as of the day and year first above written.    NEW BORROWER:   _____________,     a _________________           By: __________________________________     Name: __________________________________     Title: __________________________________                   





 






    AGENT:  WELLS FARGO BANK, NATIONAL ASSOCIATION,    a national banking association           By: __________________________________    Name: __________________________________    Title: __________________________________             





 






    Exhibit A          





 






    SCHEDULE 4.1(b)    CAPITALIZATION OF BORROWERS                





 






    SCHEDULE 4.1(c)    CAPITALIZATION OF BORROWERS’ SUBSIDIARIES  





 






    Schedule A-1    Agent’s Account    Bank: Wells Fargo Bank, N.A.  Bank Address: 420 Montgomery Street, San Francisco, CA 94104  ABA: 121-000-248  Account Name: Wells Fargo Bank, N.A.  Account Number: 37235547964505773  Reference: Montana Renewables, LLC     





 






    Schedule A-2    Authorized Persons      NAME    TITLE    Gregory J. Morical Vice President, General Counsel & Secretary  Vincent Donargo Executive Vice President and Chief Financial Officer  Jean-Pierre Breaux Treasurer        





 






    Schedule A-3    Specified Customers      6. Shell Trading (US) Company  7. Phillips 66 Company  8. REG Marketing & Logistics Group, LLC  9. Chevron Corporation      





 






    Schedule C-1    Commitments          Lender  Revolver Commitment   Total Commitment  Wells Fargo Bank,  National Association  $90,000,000 $90,000,000  All Lenders $90,000,000 $90,000,000         





 






    Schedule D-1    Designated Account          Grantor  Name of  Institution   Maintaining   Account    Address of   Institution   Maintaining Account        Account No.  Montana Renewables,  LLC  Wells Fargo Bank,  N.A.   420 Montgomery St.  San Francisco, CA  94104  4043716935     





 






    Schedule P-1    Permitted Investments    None.    





 






        Schedule P-2    Permitted Liens    None.    





 






      Schedule 3.1  The obligation of each Lender to make its initial extension of credit provided for in this Agreement is  subject to the fulfillment, to the satisfaction of each Lender (the making of such initial extension of credit  by any Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the  following conditions precedent:  (a) Agent shall have received a letter duly executed by each Loan Party authorizing Agent to  file appropriate financing statements in such office or offices as may be necessary or, in the opinion of  Agent, desirable to perfect the security interests to be created by the Loan Documents;  (b) Agent shall have received evidence that appropriate financing statements have been duly  filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the  Agent’s Liens in and to the Collateral, and Agent shall have received searches reflecting the filing of all  such financing statements;  (c) Agent shall have received each of the following documents, in form and substance  satisfactory to Agent, duly executed and delivered, and each such document shall be in full force and  effect:  (i) the Control Agreements,  (ii) the Fee Letter,  (iii) the Guaranty and Security Agreement,  (iv) the Wells Letter Agreement,  (d) Agent shall have received a certificate from the Secretary of each Loan Party (i) attesting  to the resolutions of such Loan Party’s board of directors authorizing its execution, delivery, and  performance of the Loan Documents to which it is a party, (ii) authorizing specific officers of such Loan  Party to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of  such Loan Party;  (e) Agent shall have received copies of each Loan Party’s Governing Documents, as  amended, modified, or supplemented to the Closing Date, which Governing Documents shall be (i)  certified by the Secretary of such Loan Party, and (ii) with respect to Governing Documents that are  charter documents, certified as of a recent date (not more than 30 days prior to the Closing Date) by the  appropriate governmental official;  (f) Agent shall have received a certificate of status with respect to each Loan Party, dated  within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the  jurisdiction of organization of such Loan Party, which certificate shall indicate that such Loan Party is in  good standing in such jurisdiction;  (g) Agent shall have received certificates of status with respect to each Loan Party, each  dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the  jurisdictions (other than the jurisdiction of organization of such Loan Party) in which its failure to be duly  qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that  such Loan Party is in good standing in such jurisdictions;  





 






    (h) Agent shall have received a certificate of insurance, together with the endorsements  thereto, as are required by Section 5.6 of this Agreement, the form and substance of which shall be  satisfactory to Agent;  (i) Agent shall have received an opinion of the Loan Parties’ counsel in form and substance  satisfactory to Agent;   (j) Agent shall have completed its business, and legal due diligence, including a review of  Borrowers’ and their respective Restricted Subsidiaries’ material agreements, in each case, the results of  which shall be satisfactory to Agent;   (k) Agent shall have completed (i) Patriot Act searches, OFAC/PEP searches and customary  individual background checks for each Loan Party, and (ii) OFAC/PEP searches and customary individual  background searches for each Loan Party’s senior management and key principals,  the results of which  shall be satisfactory to Agent;  (l) Agent shall have received a set of Projections of Borrowers and their Restricted  Subsidiaries, in form and substance (including as to scope and underlying assumptions) satisfactory to  Agent;    (m) Borrower shall have reimbursed Agent for all Lender Group Expenses incurred in  connection with the transactions evidenced by this Agreement and the other Loan Documents;  (n) Borrower and each of its Restricted Subsidiaries shall have received all governmental and  third party approvals (including shareholder approvals, landlords’ consents and other consents) and all  applicable waiting periods shall have expired without any action being taken or threatened by any  competent authority which would restrain, prevent or otherwise impose adverse conditions on the Credit  Agreement or the transactions contemplated by the Loan Documents;  (o) Administrative Borrower and each of its Restricted Subsidiaries shall have received all  licenses, approvals or evidence of other actions required by any Governmental Authority in connection  with the execution and delivery by Administrative Borrower or its Restricted Subsidiaries of the Loan  Documents or with the consummation of the transactions contemplated thereby;   (p) Administrative Borrower and each of its Restricted Subsidiaries shall have received all  regulatory approvals required by any Governmental Authority in connection with the operation of its  business activities as a renewable fuel producer;   (q) Agent shall have received (i) a copy of the engineering audit prepared by Weaver in  respect of Borrower’s renewable fuel standard program and (ii) evidence of approval from all applicable  Governmental Authorities of Borrower’s renewable fuel carbon intensity applications;  (r) The Supply and Offtake Arrangements shall have been closed by Borrower prior to or  contemporaneously with this Agreement; and  (s) all other documents and legal matters in connection with the transactions contemplated  by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance  satisfactory to Agent.     





 






    Schedule 4.1(b) and (c)  CAPITALIZATION OF BORROWERS AND SUBSIDIARIES  Holder Issuer Number of  Shares  Percentage of  Outstanding  Shares  Class Certificate  Number  Calumet  Montana  Refining, LLC  Montana  Renewables  Holdings LLC  75,424,500  99.9% of the  Common  Units  Common Units   Montana  Renewables,  Inc.  Montana  Renewables  Holdings LLC  75,500  .1% of the  Common  Units  Common Units   WPGG 14  United  Aggregator,  L.P.  Montana  Renewables  Holdings LLC  12,500,000  100% of the  Preferred  Units  Preferred Units   Montana  Renewables  Holdings LLC  Montana  Renewables,  LLC   100% Membership  Units      





 






    Schedule 4.1(d)    Subscriptions, Options, Warrants, Calls    None.      





 






    Schedule 4.6(b)    Litigation    None.    





 






    Schedule 4.11    Environmental Matters    Except as set forth on Schedule 4.11 to this Agreement, or as otherwise could not reasonably be expected  to have a Material Adverse Effect,     (a) to each Borrower’s knowledge, no Loan Party’s nor any of its Subsidiaries’ properties or assets has  ever been used by a Loan Party, its Subsidiaries, or by previous owners or operators in the disposal of, or  to produce, store, handle, treat, release, or transport, any Hazardous Materials, where such disposal,  production, storage, handling, treatment, release or transport was in violation, in any material respect, of  any applicable Environmental Law:     The Loan Party’s assets in Great Falls, Montana are located on real property that Borrower leases from  Calumet Montana Refining, LLC pursuant to a Ground Lease dated November 18, 2021 (“Ground  Lease Property”). Prior owners of the Ground Lease Property conducted operations on the Ground  Lease Property, including the production, handling, and treatment of Hazardous Materials.  The Ground  Lease Property is subject to Montana Department of Environmental Quality Corrective Action Order  on Consent MHWCA0-12-01, EPA ID No. MTD000475194, which names Calumet Montana Refining,  LLC (“Corrective Order on Consent”). Pursuant to the terms of the Ground Lease, neither Loan Party  nor any of its Subsidiaries has any liability for environmental damage to the Ground Lease Property in  existence prior to the effective date of the Ground Lease.     (b) to each Borrower’s knowledge, after due inquiry, no Loan Party’s nor any of its Subsidiaries’ properties  or assets has ever been designated or identified in any manner pursuant to any environmental protection  statute as a Hazardous Materials disposal site:    None.    (c) except as notified to the Agent in writing, no Loan Party nor any of its Subsidiaries has received notice  that a Lien arising under any Environmental Law has attached to any revenues or to any Real Property  owned or operated by a Loan Party or its Subsidiaries:    None.    (d) no Loan Party nor any of its Subsidiaries nor any of their respective facilities or operations is subject  to any outstanding written order, consent decree, or settlement agreement with any Person relating to any  Environmental Law or Environmental Liability that, individually or in the aggregate, could reasonably be  expected to result in a Material Adverse Effect:    None.         





 






    Schedule 4.14    Permitted Indebtedness      None.    





 






      Schedule 4.25   Chief Executive Office    2780 Waterfront Parkway, E. Drive, Suite 200, Indianapolis, IN 46214     





 






    Schedule 5.1  Deliver to Agent (and if so requested by Agent, with copies for each Lender) each of the financial  statements, reports, or other items set forth below at the following times in form satisfactory to Agent:  as soon as available, but in  any event within 45 days  after the end of each month  during each of Parent’s  fiscal years):  (a) unaudited consolidated and consolidating financial statements of  the Loan Parties and their Restricted Subsidiaries, compared to the prior  period and prepared in accordance with GAAP (except for the absence  of footnotes and subject to year-end adjustments).  Such financial  statements to include a balance sheet as of the end of such period, an  income statement for such period and a statement of cash flow for such  period;  (b) a Compliance Certificate along with the underlying calculations,  including the calculations to arrive at EBITDA and Fixed Charge  Coverage Ratio (which calculations shall be provided whether or not a  Covenant Testing Period is in effect);  as soon as available, but in  any event within 120 days  after the end of each of  Parent’s fiscal years:  (c) consolidated and consolidating financial statements of the Loan  Parties and their Restricted Subsidiaries for each such fiscal year, audited  by independent certified public accountants reasonably acceptable to  Agent and certified, without any qualifications (including any (i) “going  concern” or like qualification or exception, (ii) qualification or exception  as to the scope of such audit, or (iii) qualification which relates to the  treatment or classification of any item and which, as a condition to the  removal of such qualification, would require an adjustment to such item),  by such accountants to have been prepared in accordance with GAAP.   Such audited financial statements to include a balance sheet as of the end  of such period, an income statement for such period, a statement of cash  flow, and statement of shareholder’s equity for such period and, if  prepared, such accountants’ letter to management;  (d) a Compliance Certificate along with the underlying calculations,  including the calculations to arrive at EBITDA and Fixed Charge  Coverage Ratio (which calculations shall be provided whether or not a  Covenant Testing Period is in effect);  as soon as available, but in  any event within 45 days  after to the start of each of  Parent’s fiscal years:  (e) copies of Administrative Borrower’s Projections, in form and  substance (including as to scope and underlying assumptions)  satisfactory to Agent, in its Permitted Discretion, for the 5 year period  following the date of such Projections (on a year by year basis, and for  the 1 year period following the date of such Projections, on a month by  month basis), certified by the chief financial officer of Administrative  Borrower’s as being such officer’s good faith estimate of the financial  performance of Administrative Borrower and its Restricted Subsidiaries  during the period covered thereby;  if and when delivered by  Parent or Borrower  (f) any other information that is provided by Parent or Borrower to  its shareholders generally;  promptly, but in any event  within 5 Business Days after  any Borrower has  (g) notice of such event or condition and a statement of the curative  action that Borrowers propose to take with respect thereto;  





 






    knowledge of any event or  condition that constitutes a  Default or an Event of  Default,    promptly after the  commencement thereof, but  in any event within 5  Business Days after the  service of process with  respect thereto on a Loan  Party or any of its Restricted  Subsidiaries:  (h) notice of all actions, suits, or proceedings brought by or against  the Loan Parties or any of its Restricted Subsidiaries before any  Governmental Authority which reasonably could be expected to result in  a Material Adverse Effect;   When provided to any of  Borrower’s customer(s),  (i) copies of the Quality Assurance Plan delivered to such customer;  upon the request of Agent,  (j) any other information reasonably requested relating to the  financial condition of the Loan Parties or their Subsidiaries.  





 






    Schedule 5.2  Provide Agent (and if so requested by Agent, with copies for each Lender) with each of the  documents set forth below at the following times in form satisfactory to Agent:  If (x) no Increased  Reporting Period is in  effect, monthly (no  later than the 15th day  of each fiscal month,  or (y) an Increased  Reporting Period is in  effect, weekly (no later  than Wednesday of  each week,  commencing with the  first such day to occur  during any Increased  Reporting Period),  (a) a completed Borrowing Base Certificate (which such Borrowing Base  Certificate shall be delivered in accordance with the provisions of Section 5.2 of this  Agreement),  (b) a detailed aging, by total, of each Borrower’s Accounts, together with a  reconciliation and supporting documentation for any reconciling items noted,   (c) a monthly Account roll-forward, in a format acceptable to Agent in its  discretion, tied to the beginning and ending account receivable balances of  Borrowers’ general ledger  (d) a detailed calculation of those Accounts that are not eligible for the  Borrowing Base,    (e) notice of all claims, offsets, or disputes asserted by Account Debtors with  respect to each Borrower's Accounts,  (f) a summary aging, by vendor, of each Loan Party’s accounts payable and any  book overdraft and an aging, by vendor, of any held checks,   (g) a detailed report regarding each Loan Party’s and its Restricted Subsidiaries'  cash and Cash Equivalents, including an indication of which amounts constitute  Qualified Cash and the Macquarie Independent Amount; and  (h) for any period during which the Blenders Tax Credit is in effect (i) a written  report confirming the amount of Blenders Tax Credit (1) due to Borrower by the  Department of Treasury (or other applicable Governmental Authority), (2) received  by Borrower, and (3) due from Borrower to its Account Debtors including a detailed  listing of the name of each Account Debtor and the amount each such Account  Debtor is, or has asserted it is, entitled to receive and (ii) such other information with  respect to the Blenders Tax Credit as Agent may request from time to time.  Monthly (no later than  the 30th day of each  month),  (i) a reconciliation of Accounts, accounts payable of Borrowers’ general ledger  to its monthly financial statements, including any book reserves related to each  category.    Quarterly (no later than  the 45th day after the  end of each fiscal  quarter),  (j) a report regarding each Loan Party’s and its Restricted Subsidiaries’ accrued,  but unpaid, ad valorem taxes,   (k) supplements to the Schedules to this Agreement and the Guaranty and  security Agreement to the extent necessary to update the information set forth  therein,   (l) a detailed list of each Loan Party’s and its Restricted Subsidiaries’ customers  in respect of all Accounts, with address and contact information; and  (m) a certification setting forth the list of Immaterial Subsidiaries and  Unrestricted Subsidiaries, to the extent there have been changes.  





 






    Upon request by Agent   (n) a report of each Loan Party’s and its Restricted Subsidiaries' cash and Cash  Equivalents, including an indication of which amounts constitute Qualified Cash and  the Macquarie Independent Amount;  (o) copies of invoices, and credit memos together with corresponding supporting  documentation, with respect to invoices and credit memos in excess of an amount  determined in the sole discretion of Agent, from time to time,   (p) all relevant documentation related to Borrower’s filing method under the  IRC for tax treatment that entitles it to elect a refund of excise taxes as a Blenders  Tax Credit,   (q) any change in the information provided in the Beneficial Ownership  Certification that would result in a change to the list of beneficial owners identified  in parts (c) or (d) of such certification and  (r) such other reports as to the Collateral of any Loan Party and its Restricted  Subsidiaries, as Agent may reasonably request.  





 






    Schedule 5.16  Blenders Tax Credits  Renewable Diesel Mixture Credit:  Taxpayers who produce any biodiesel or renewable diesel mixture for sale or use in a trade or business may  claim a credit of $1.00/gallon. The renewable diesel mixture is the product of mixing renewable diesel with  diesel fuel (other than renewable diesel). The credit is based on the gallons of renewable diesel in the  mixture. Credits must be supported with a certification of the fuel which identifies the product produced  and the percentage of renewable diesel in the product (Model Certificate O).   Renewable Diesel Credit:  Taxpayers who use biodiesel/renewable diesel which is not mixed with diesel fuel in a trade or business or  sell at retail to a person and placed in the fuel tank of such persons' vehicle may claim a credit of  $1.00/gallon. Credits must be supported with a certification of the fuel which identifies the product  produced and the percentage of renewable diesel in the product (Model Certificate O).  Imposition of Tax:  Tax is imposed on: 1) the removal of taxable diesel fuel from any refiner; 2) the removal of taxable diesel  fuel from any terminal; 3) the entry of taxable diesel fuel into the US for consumption, use, or warehousing;  and 4) the sale of taxable diesel fuel to any person who is not registered (unless there was a prior taxable  removal/entry of such fuel) at $0.243/gallon.  In general, tax is not imposed on any removal or entry of the taxable diesel fuel transferred in bulk by  pipeline or vessel to a terminal or refinery if the person removing or entering the taxable fuel (operator of  the pipeline or vessel) and the operator of the terminal or refinery are registered. Tax is imposed on taxable  diesel fuel removed or sold by the blender at $0.243/gallon. In addition to the federal excise tax, the Leaking  Underground Storage Tank (""LUST"") tax is imposed on the sale or use of taxable diesel fuel at  $0.001/gallon.  Filing Credit Claims:  a) Quarterly Federal Excise Tax Return (Form 720) - A credit can be claimed when filing the  quarterly excise tax return in section 12 of Schedule C for any biodiesel or renewable diesel mixture  credit to reduce the quarterly liability and/or generate a refund.   b) Claim for Refund of Excise Taxes (Form 8849) - Any excess credits not claimed on Form 720  or Form 4136 can be claimed on Form 8849 in Schedule 3 for biodiesel or renewable diesel mixture  credits.  c) Credit for Federal Tax Paid on Fuels (Form 4136) - A credits can be claimed when filing the  annual income tax return (Form 1120). Credits claimed on Form 720 or Form 8849 cannot be  claimed on this form but can include credits not claimed through the reporting year. Credits for  biodiesel or renewable diesel mixture credit can be claimed in section 10 of the form.  





 






    Schedule 6.5  Nature of Business  The operation of a refinery to process renewable feedstocks into renewable fuels, related products and  environmental credits.