AMENDMENT NUMBER SEVEN AND LIMITED CONSENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.1
AMENDMENT
NUMBER SEVEN AND LIMITED CONSENT
TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER SEVEN AND LIMITED CONSENT TO LOAN AND SECURITY AGREEMENT (this “Amendment No. 7”), dated as of July 24, 2024, is entered into by and among Vertex Energy, Inc., a Nevada corporation (“Parent”), Vertex Refining Alabama LLC, a Delaware limited liability company (“Borrower”), each of Parent’s direct and indirect Subsidiaries listed on the signature pages hereto other than Excluded Subsidiaries (collectively, the “Subsidiary Guarantors” and each, individually, a “Subsidiary Guarantor”; the Subsidiary Guarantors, together with Parent, each a “Guarantor” and collectively, the “Guarantors”), Cantor Xxxxxxxxxx Securities (“Cantor”), as administrative agent and collateral agent for the Lenders (“Agent”), the Existing Lenders (as defined below), the 2024 Term Loan Lenders (as defined in Exhibit A) and Xxxxxxxx Xxxxxxxxx, a natural person (“JS Lender”, together with the Existing Lenders and the 2024 Term Loan Lenders, the “Lenders” and each, a “Lender”).
W I T N E S S E T H
WHEREAS, Parent, Borrower, the Subsidiary Guarantors, the Existing Lenders (as defined below) and Agent are parties to that certain Loan and Security Agreement, dated as of April 1, 2022, as amended by that certain Amendment Number One to Loan and Security Agreement, dated as of May 26, 2022, that certain Amendment Number Two to Loan and Security Agreement, dated as of September 30, 2022, that certain Amendment Number Three to Loan and Security Agreement, dated as of January 8, 2023, that certain Amendment Number Four and Consent and Waiver to Loan and Security Agreement, dated as of May 26, 2023, that certain Amendment Number Five to Loan and Security Agreement, dated as of December 28, 2023, as modified by that certain Limited Consent, dated as of March 22, 2024, as modified by that certain Limited Consent, dated as of March 28, 2024, as modified by that certain Limited Consent and Waiver, dated as of May 23, 2024, as modified by that certain Limited Consent and Partial Release, dated as of May 24, 2024, as modified by that certain Omnibus Amendment and Waiver, dated as of June 3, 2024, as modified by that certain Limited Consent, dated as of June 11, 2024, as modified by that certain Limited Consent, dated as of June 18, 2024 and as amended by that certain Amendment Number Six and Limited Consent to Loan and Security Agreement, dated as of June 25, 2024 (collectively, the “Existing Loan Agreement”, and the Existing Loan Agreement as amended by this Amendment No. 7, the “Loan Agreement”; the Lenders under the Existing Loan Agreement immediately prior to this Amendment No. 7, the “Existing Lenders”; capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Loan Agreement);
WHEREAS, (i) Borrower has requested that the JS Lender provide the JS Loan Commitment in an aggregate principal amount equal to $20,000,000, (ii) Borrower has requested that Agent and the Existing Lenders consent to certain additional amendments to the Existing Loan Agreement and (iii) notwithstanding Section 7.19 of the Loan Agreement, the Loan Parties have requested that the Agent and the Required Lenders consent to permitting the Consolidated Liquidity to be less than $25,000,000, but not less than $15,000,000, in each case, for any period of more than three (3) consecutive Business Days prior to September 24, 2024 (this clause (iii), the “Specified Consent”);
WHEREAS, in each case, subject to the terms and conditions of this Amendment No. 7, (A) the JS Lender agrees to provide the JS Loan Commitments, (B) the Agent (at the direction of the Lenders) and the Existing Lenders agree to make such amendments to the Existing Loan Agreement, (C) the Agent (at the direction of the Required Lenders) and the Lenders, which constitute the Required Lenders, agree to provide the Specified Consent, (D) as consideration to the Existing Lenders for providing (i) the requested amendments to the Existing Loan Agreement and (ii) the Specified Consent, an additional 2024 Term Loan in an aggregate principal amount of the July PIK Fee Amount shall be deemed to have been made on the Seventh Amendment Effective Date, on a pro rata basis, to the Existing Lenders holding Term Loans immediately prior to the Seventh Amendment Effective Date and (E) as consideration to the JS Lender for providing the Specified Consent and funding the JS Loans, an additional JS Loan in an aggregate principal amount of the JS PIK Fee Amount shall be deemed to have been made on the Seventh Amendment Funding Date, on a pro rata basis, to the JS Lender; and
WHEREAS, upon the terms and conditions set forth herein and subject to the receipt of the consideration in the amount of the July PIK Fee Amount referenced above, Agent and Lenders agree to (i) make such amendments to the Existing Loan Agreement and (ii) provide the Specified Consent, in each case, subject to the terms and conditions of this Amendment No. 7.
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, the parties hereby agree as follows:
1. Defined Terms. All initially capitalized terms used herein (including the preamble and recitals hereof) without definition shall have the meanings ascribed thereto in Section 1.1 of the Loan Agreement.
2.
Amendments to Existing Loan Agreement. Subject to the satisfaction (or waiver in writing by the Lenders) of the conditions
precedent set forth in Section 4 hereof, (a) the Existing Loan Agreement (other than the signature pages, other Exhibits
and Schedules thereto) is hereby amended (i) to delete the red or green stricken text (indicated textually in the same manner
as the following examples: stricken text and stricken
text) and (ii) to add the blue or green double-underlined text (indicated textually in the same manner as the
following examples: double-underlined text and double-underlined
text) as set forth in the marked copy of the Loan Agreement attached as Exhibit A hereto and (b) Exhibit D of
the Existing Loan Agreement is hereby amended and restated in the form attached as Exhibit B hereto. The parties hereto
acknowledge and agree that each amendment to the Existing Loan Agreement reflected in Exhibit A shall be effective as if
individually specified in this Amendment No. 7 (the parties further acknowledging that amending the Existing Loan Agreement thereto
by reference to Exhibit A provides a convenience to the parties to permit the amended terms to be read in the context of
the full Loan Agreement).
3. Specified Consent.
(a) | In reliance upon the representations and warranties of each Loan Party set forth in Section 6 below and the conditions to the Specified Consent set forth in paragraph (d) below, Agent and the Lenders under the Loan Agreement party hereto, constituting the Required Lenders (both before and after the Seventh Amendment Effective Date), hereby provides the Specified Consent. |
(b) | After giving effect to this Amendment No. 7, subject to the conditions in paragraph (d) below, the Consolidated Liquidity may be less than $25,000,000, but not less than $15,000,000, for any period of more than three (3) consecutive Business Days without triggering a Default under the Loan Agreement. For the avoidance of doubt, the Specified Consent (which may be extended by the Required Lenders in their sole discretion by e-mail) shall expire on September 24, 2024. |
(c) | The foregoing is a limited consent. Except as expressly set forth in this Amendment No. 7, nothing in this Amendment No. 7 shall constitute a modification or alteration of the terms, conditions or covenants of the Loan Agreement or any other Loan Document, or a waiver of any other terms or provisions thereof, and the Loan Agreement and the other Loan Documents shall remain unchanged and shall continue in full force and effect, in each case as amended hereby. |
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(d) | The Specified Consent shall be subject to compliance with the condition on an ongoing basis that the Agent shall have received an amendment or consent with respect to the Intermediation Agreement to lower (whether by amendment, waiver or limited consent) the Minimum Liquidity Requirement (as defined therein) to $15,000,000 on terms (including with respect to time period) no less restrictive than those provided in this Section 3. |
4. Conditions Precedent to Amendment. The satisfaction (or waiver in writing by Agent (at the direction of the Lenders) or the Lenders) of each of the following shall constitute conditions precedent to the effectiveness of this Amendment No. 7 (the date on which all such conditions precedent are either satisfied or waived, being the “Seventh Amendment Effective Date”):
(a) | The Agent and the Lenders shall have received the following documents, each in form and substance satisfactory to the Lenders: |
i. | this Amendment No. 7, duly executed by the parties hereto; |
ii. | a duly executed Notice of Borrowing in the form attached as Exhibit B hereto, at least two (2) Business Days prior to the Seventh Amendment Funding Date specifying: (a) the principal amount of the proposed JS Loan and (b) the use of the proceeds of such proposed JS Loan, which shall be used solely for (i) general corporate purposes consistent with the Approved Forecast and (ii) Lender Expenses, in all cases, subject to the terms of the Loan Agreement; |
iii. | an amendment or consent with respect to the Intermediation Agreement to lower the Minimum Liquidity Requirement (as defined therein) to $15,000,000 on terms (including with respect to time period) no less restrictive than those provided in Section 3; |
iv. | customary legal opinions of (x) Xxxxxxxxx LLP, in its capacity as special counsel to the Loan Parties and (y) local counsel to the Loan Parties and jurisdictions as reasonably agreed by the Borrower and the Lenders, in each case, dated as of the Seventh Amendment Effective Date and addressed to the Agent and the Lenders; |
v. | a duly executed officer’s certificate of each Loan Party containing the following documents: (i) the Organization Documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), certifying no change thereto as of the Seventh Amendment Effective Date, (ii) resolutions authorizing this Amendment No. 7 and, in the case of Parent, the Additional 2024 Warrant Agreement, the Additional 2024 Warrants and the Additional 2024 Registration Rights Agreement, and specifically affirming that (a) prior to executing this Amendment No. 7 and the other Loan Documents, Xxxxxxxx has had the opportunity to review, evaluate, and negotiate this Amendment No. 7, the other Amendment Documents, the other Loan Documents, the Exit Fee, the Exit Fee 2024, the JS Exit Fee and the calculations thereof, as applicable, with its advisors, (b) the Exit Fee, the Exit Fee 2024 and the JS Exit Fee are each a good-faith, reasonable approximation of the Lenders’ liquidated damages upon the applicable triggering events, taking into account all of the circumstances, including the cost of funds, the opportunity costs of capital, the relative risk of the investment, and the operational benefits for the Loan Parties from continued use of funds as a result of the Lenders’ agreement to accept the Exit Fee, the Exit Fee 2024 and the JS Exit Fee, as applicable, in lieu of additional up-front fees and (c) the Exit Fee, the Exit Fee 2024 and the JS Exit Fee are each not intended to be nor viewed by the parties as the economic equivalent of unmatured interest, (iii) a good standing certificate from (A) each Loan Party’s state of formation and (B) from any state where such party is, or is required to be, qualified to do business to the extent failure to so qualified could reasonably be expected to have a Material Adverse Effect and (iv) incumbency and representative signatures, or to the extent applicable, certifying no change thereto as of the Seventh Amendment Effective Date; |
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vi. | all necessary consents of stockholders or members and other third parties with respect to the execution, delivery and performance of this Amendment No. 7 and the Loan Documents by the Loan Parties; |
vii. | a Solvency Certificate duly executed by the chief financial officer, chief executive officer, president or similar senior officer of Parent (after giving effect to the transactions contemplated by this Amendment No. 7) certifying that the Loan Parties, individually and collectively, are not Insolvent; and |
viii. | a duly executed Amendment Number Seven Fee Letter, dated as of the Seventh Amendment Effective Date. |
(b) | The Lenders shall have received the following documents each in form and substance satisfactory to the Lenders: |
i. | the Additional 2024 Warrant Agreement, duly executed by the parties thereto; and |
ii. | the Additional 2024 Registration Rights Agreement, duly executed by the Parent. |
(c) | Delivery of an Closing Certificate reflecting confirmation that after giving effect to this Amendment No. 7 and the consents contained herein (i) the representations and warranties contained in Article 5 of the Loan Agreement and in Section 6 hereof shall be true and correct on and as of the Seventh Amendment Effective Date (except for such representations and warranties made as of a specific date, in which case such representations and warranties shall be true and correct as of such specific date), after giving effect in all cases to any standard(s) of materiality contained in Article 5 of the Loan Agreement and Section 6 hereof as to such representations and warranties, (ii) no Default or Event of Default shall have exist and be continuing or would exist immediately after giving effect to this Amendment No. 7 and (iii) attaching the Approved Forecast required under clause (d) below. |
(d) | the Agent shall have received an Approved Forecast, in form and substance satisfactory to the Required Lenders in their sole discretion, delivered in accordance with Section 6.23 of the Loan Agreement (as amended hereby) and attached to the officer’s certificate delivered under clause (a)(v) of this Section 4; |
(e) | the Agent shall have received evidence that Xxxxxx has engaged and retained Xxxx Xxxxxxx as chief restructuring officer; |
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(f) | the JS Lender has complied with all “Know-Your-Customer” requirements of the Agent; and |
(g) | the 2024 Term Loans shall be deemed to have been made in the July PIK Fee Amount in accordance with the Amendment Number Seven Fee Letter. |
For purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment No. 7 shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice from such Lender prior to the proposed Seventh Amendment Effective Date specifying its objection thereto.
5. | Conditions Precedent to Funding. The satisfaction (or waiver in writing by Agent (at the direction of the Lenders) or the Lenders) of each of the following shall constitute conditions precedent to the funding of the JS Loans (the date on which all such conditions precedent are either satisfied or waived, being the “Seventh Amendment Funding Date”): |
(a) | the occurrence of the Seventh Amendment Effective Date; |
(b) | the Agent and the Lenders shall have received, in form and substance satisfactory to the Lenders, wire instructions for the account into which the portion of JS Loan proceeds directed to the Borrower should be deposited as set forth in the direction letter and Funds Flow Memorandum attached thereto, which shall reflect the capitalization of all applicable fees due pursuant to Section 7 hereof and an allocation of the payment in full of all Lender Expenses due pursuant to Section 7 hereof in immediately available funds; |
(c) | the JS Loans shall be deemed to have been made in the JS PIK Fee Amount in accordance with the Amendment Number Seven Fee Letter; |
(d) | the issuance by Parent of the Additional 2024 Warrants totaling 2.5% of outstanding shares of Parent to the Existing Lenders or their Affiliates or Approved Funds; |
(e) | the Refining Intermediation Facility is in full force and effect, and Macquarie has made, or has been deemed to have made, a Positive Election under (and as defined in) that certain Tripartite Crude Supply Agreement dated April 1, 2022, among Shell Trading (US) Company, the Borrower, and Macquarie through August 24, 2024; and |
(f) | Macquarie has delivered a conditional consent under the Refining Intermediation Facility to make a Positive Election under (and as defined in) that certain Tripartite Crude Supply Agreement dated April 1, 2022, among Shell Trading (US) Company, the Borrower, and Macquarie through September 24, 2024 reasonably acceptable to the Lenders. |
For purposes of determining compliance with the conditions specified in this Section 5, the JS Lender shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to it upon funding its JS Loan unless the Agent shall have received notice from the JS Lender prior to the proposed Seventh Amendment Funding Date specifying its objection thereto.
For the avoidance of doubt, it is hereby acknowledged and agreed that in the event that the conditions specified in this Section 5 are not satisfied on or before 3:00 p.m. New York time on July 29, 2024, the JS Commitment and obligation of the JS Lender to make the JS Loans shall automatically terminate at such time.
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6. Representations and Warranties. Each Loan Party jointly and severally, hereby:
(a) | represents and warrants that, each of the representations and warranties made to Agent and Lenders under the Loan Agreement and all of 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 as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties are true and correct in all respects subject to such qualification) on and as of the date hereof (after giving effect to this Amendment No. 7 and the other documents executed in connection with this Amendment No. 7) except to the extent that such representations and warranties specifically relate 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 or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date; |
(b) | represents and warrants that, after giving effect to this Amendment No. 7, no Default or Event of Default will have occurred and be continuing; |
(c) | represents and warrants that the execution, delivery and performance by each Loan Party of this Amendment No. 7 and the other documents, agreements and instruments executed by any Loan Party in connection herewith (collectively, together with this Amendment No. 7, the “Amendment Documents”) and the consummation of the transactions contemplated hereby or thereby, are within such Loan Party’s powers, have been duly authorized by all necessary organizational action, and do not contravene (i) the Organization Documents of such Loan Party or (ii) any law or any material Contractual Obligation of any Loan Party, except, for purposes of this clause (c), to the extent such contravention would not reasonably be expected to have a Material Adverse Effect; |
(d) | represents and warrants that no authorization or approval or other action by, and no notice to or filing with, any Governmental Authority, any stockholders, members, partners or any other equity holders of any Loan Party, and any Person pursuant to any Contractual Obligation, is required for the due execution, delivery and performance by any Loan Party of any Amendment Document to which it is a party that has not already been obtained if the failure to obtain such authorization, approval or other action, or to provide such notice or make such filing, could reasonably be expected to result in a Material Adverse Effect; |
(e) | represents and warrants that each Amendment Document has been duly executed and delivered by each Loan Party party thereto; and |
(f) | represents and warrants that this Amendment No. 7 constitutes, and each other Amendment Document to be executed on the date hereof will constitute, upon execution, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with its respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization or moratorium or similar laws relating to or affecting the rights of creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). |
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7. | Payment of Costs and Fees. Borrower shall pay to Agent and each Lender all expenses required to be paid pursuant to Section 2.5 and Section 10.3 of the Loan Agreement in connection with the preparation, negotiation, execution and delivery of this Amendment No. 7 and any documents and instruments relating hereto. |
8. | Post-Closing Matters. Each Loan Party agrees to complete, or cause all of the items, matters and documents set forth in Schedule I hereto to be completed, executed and delivered (as applicable) not later than the dates and times set forth in the Schedule I. Failure to comply with this Section 8 shall constitute an immediate Event of Default under the Loan Agreement. |
9. | GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL PROVISIONS. THIS AMENDMENT NO. 7 SHALL BE SUBJECT TO THE PROVISIONS REGARDING GOVERNING LAW, JURISDICTION, AND WAIVER OF JURY TRIAL SET FORTH IN SECTION 14.14 OF THE LOAN AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS. |
10. | Amendments. This Amendment No. 7 cannot be altered, amended, changed or modified in any respect except in accordance with Section 14.4 of the Loan Agreement. |
11. | Counterparts. This Amendment No. 7 and any notices delivered under this Amendment No. 7 may be executed by means of (i) an electronic signature that complies with the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar state laws based on the Uniform Electronic Transactions Act; (ii) an original manual signature; or (iii) 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. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. This Amendment No. 7 may be executed in any number of counterparts, and it is not necessary that the signatures of all parties hereto be contained on any one counterpart hereof, each counterpart will be deemed to be an original, and all together shall constitute one and the same document. |
12. | Effect on Loan Documents. |
(a) | The Loan Agreement, as amended hereby, and each of the other Loan Documents shall be and remain in full force and effect in accordance with their respective terms and hereby are ratified and confirmed in all respects. The execution, delivery, and performance of this Amendment No. 7 shall not operate, except as expressly set forth herein, as a modification or waiver of any right, power, or remedy of Agent or any Lender under the Loan Agreement or any other Loan Document. Except for the amendments to the Loan Agreement expressly set forth herein, the Loan Agreement and the other Loan Documents shall remain unchanged and in full force and effect. |
(b) | Upon and after the effectiveness of this Amendment No. 7, each reference in the Loan Agreement to “this Agreement”, “hereunder”, “herein”, “hereof” or words of like import referring to the Loan Agreement, and each reference in the other Loan Documents to “the Loan Agreement”, “thereunder”, “therein”, “thereof” or words of like import referring to the Loan Agreement, shall mean and be a reference to the Loan Agreement as modified and amended hereby. |
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(c) | To the extent that any of the terms and conditions in any of the Loan Documents shall contradict or be in conflict with any of the terms or conditions of the Loan Agreement, after giving effect to this Amendment No. 7, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Loan Agreement as modified or amended hereby. |
(d) | This Amendment No. 7 is a Loan Document. |
(e) | The Loan Parties acknowledge that upon funding of the JS Loans and effectiveness of the Specified Consent, the JS Loans, any JS PIK Fee Amount capitalized as JS Loans and any July PIK Fee Amounts capitalized as 2024 Term Loans shall constitute a Term Loan and shall constitute part of the Obligations under the Loan Agreement. |
(f) | The JS Lender and hereby agrees, from and after the Seventh Amendment Effective Date, it shall be bound by the provisions of the Loan Agreement as a Lender thereunder and will have all obligations of a Lender thereunder. The JS Lender hereby represents and warrants that the JS Lender is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended. |
13. | Entire Agreement. This Amendment No. 7 and each of the other Loan Documents, taken together, constitute and contain the entire agreement between the Loan Parties, Agent and Lenders and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof. |
14. | Reaffirmation of Obligations. The Loan Parties hereby acknowledge and agree that all terms, covenants, conditions and provisions of the Loan Documents (including, without limitation, each Collateral Document) continue in full force and effect, are herein reaffirmed in their entirety and remain unaffected and unchanged, except to the extent expressly set forth in this Amendment No. 7. Neither this Amendment No. 7 nor the execution and delivery of this Amendment No. 7 by Agent, the Lenders and the Loan Parties hereto shall constitute a novation or renewal of the Term Loan or the Indebtedness or any of the Loan Documents. This Amendment No. 7, except to the extent expressly set forth herein, is not intended to and shall not be deemed or construed to create or constitute a waiver, release, or relinquishment of, and shall not affect, the liens, security interests and rights, remedies and interests under the Loan Documents, all of which are hereby ratified, confirmed, renewed and extended in all respects. |
15. | Severability of Provisions. Each provision of this Amendment No. 7 shall be severable from every other provision of this Amendment No. 7 for the purpose of determining the legal enforceability of any specific provision. |
16. | Agent Direction. The Agent has executed this Amendment No. 7 as directed under and in accordance with the Loan Agreement and will perform this Amendment No. 7 solely in its capacity as Agent xxxxxxxxx, and not individually. In performing under this Amendment No. 7, the Agent shall have all rights, protections, immunities and indemnities granted to it under the Loan Agreement. Subject to the terms of the Loan Agreement, the Agent shall have no obligation to perform or exercise any discretionary act. Each of the undersigned Xxxxxxx, constituting all of the Lenders both prior to and immediately after the Amendment No. 7 Effective Date hereby directs and consents to the Agent’s execution of this Amendment No. 7, any other Amendment Documents and any other documents contemplated hereunder, in each case, in accordance with this Amendment No. 7. |
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17. | A&R Intercreditor Agreement Governs. This Amendment No. 7 and the other Loan Documents are subject to the terms and conditions set forth in the A&R Intercreditor Agreement, in all respects and, in the event of any conflict between the terms of the A&R Intercreditor Agreement and this Amendment No. 7, the terms of the A&R Intercreditor Agreement shall govern. Notwithstanding anything herein to the contrary, the lien and security interest granted to the Agent or any Intermediation Facility Agent, as applicable, pursuant to any Loan Document or any Intermediation Facility Document, and the exercise of any right or remedy in respect of the Collateral by the Agent or any Intermediation Facility Agent, as applicable hereunder, under any other Loan Document, under any Intermediation Facility Document and any other agreement entered into in connection with the foregoing are subject to the provisions of the A&R Intercreditor Agreement and in the event of any conflict between the terms of the A&R Intercreditor Agreement, this Amendment No. 7, any other Loan Document, any Intermediation Facility Document and any other agreement entered into in connection with the foregoing, the terms of the A&R Intercreditor Agreement shall govern and control with respect to the exercise of any such right or remedy or the Loan Parties’ covenants and obligations. |
18. | Release. In consideration of the agreements of the Agent and the Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower, on behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges the Agent and the Lenders, and their successors and assigns, and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (the Agent, each Lender and all such other Persons being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set off, demands and liabilities whatsoever of every name and nature, in each case, in relation to, or in any way in connection with any of the Loan Agreement, or any of the other Loan Documents or transactions thereunder or related thereto, known as of the date of this Amendment No. 7, both at law and in equity, which Borrower, or any of its successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Amendment No. 7. |
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have entered into this Amendment No. 7 as of the date first above written.
PARENT: | VERTEX
ENERGY, INC., | |
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
BORROWER: | VERTEX
REFINING ALABAMA LLC, | |
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
SUBSIDIARY GUARANTORS: | VERTEX
REFINING TEXAS LLC, | |
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
VERTEX
MARINE FUEL SERVICES LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
VERTEX
ENERGY OPERATING, LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
[Signature Page to Amendment No. 7]
VERTEX
REFINING LA, LLC, a Louisiana limited liability company | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
HPRM
LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | Director, President and Chief Executive Officer |
TENSILE-HEARTLAND
ACQUISITION CORPORATION, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | Director, President and Chief Executive Officer |
VERTEX
RECOVERY MANAGEMENT, LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
VERTEX
REFINING NV, LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
VERTEX
SPLITTER CORPORATION, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | Director |
[Signature Page to Amendment No. 7]
VERTEX
REFINING MYRTLE GROVE LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
CRYSTAL
ENERGY, LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President |
VERTEX
ACQUISITION SUB, LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
BANGO
OIL LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
CEDAR
MARINE TERMINALS, LP, | ||
By: Vertex II GP, its General Partner | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
[Signature Page to Amendment No. 7]
CROSSROAD
CARRIERS, L.P., | ||
By: Vertex II GP, its General Partner | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
VERTEX
RECOVERY, L.P., | ||
By: Vertex II GP, its General Partner | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
H
& H OIL, L. P., | ||
By: Vertex II GP, its General Partner | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
VERTEX
II GP, LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
TENSILE-MYRTLE
GROVE ACQUISITION CORPORATION, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chairman of the Board |
[Signature Page to Amendment No. 7]
VERTEX
MERGER SUB, LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
VERTEX
RENEWABLES LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
VERTEX
RENEWABLES ALABAMA LLC, | ||
By: | /s/ Xxxxxxxx X. Xxxxxx | |
Name: | Xxxxxxxx X. Xxxxxx | |
Title: | President and Chief Executive Officer |
[Signature Page to Amendment No. 7]
WHITEBOX
MULTI-STRATEGY PARTNERS, LP, | |||
By: | /s/ Xxxxxx Xxxx | ||
Name: | Xxxxxx Xxxx | ||
Title: | Managing Director |
WHITEBOX
RELATIVE VALUE PARTNERS, LP, | |||
By: | /s/ Xxxxxx Xxxx | ||
Name: | Xxxxxx Xxxx | ||
Title: | Managing Director |
WHITEBOX
GT FUND, LP, | |||
By: | /s/ Xxxxxx Xxxx | ||
Name: | Xxxxxx Xxxx | ||
Title: | Managing Director |
PANDORA
SELECT PARTNERS, LP, | |||
By: | /s/ Xxxxxx Xxxx | ||
Name: | Xxxxxx Xxxx | ||
Title: | Managing Director |
[Signature Page to Amendment No. 7]
HIGHBRIDGE
TACTICAL CREDIT MASTER FUND, L.P., | |||
By: | Highbridge Capital Management, LLC, as Trading Manager and not in its individual capacity | ||
By: | /s/ Xxxxxxxx Xxxxx | ||
Name: | Xxxxxxxx Xxxxx | ||
Title: | Managing Director, Co-Chief Investment Officer |
HIGHBRIDGE
SCF II LOAN SPV, L.P., | |||
By: | Highbridge
Capital Management, LLC, as Trading Manager and not in its individual capacity | ||
By: | /s/ Xxxxxxxx Xxxxx | ||
Name: | Xxxxxxxx Xxxxx | ||
Title: | Managing Director, Co-Chief Investment Officer |
HIGHBRIDGE
TACTICAL CREDIT INSTITUTIONAL FUND, LTD., | |||
By: | Highbridge
Capital Management, LLC, as Trading Manager and not in its individual capacity | ||
By: | /s/ Xxxxxxxx Xxxxx | ||
Name: | Xxxxxxxx Xxxxx | ||
Title: | Managing Director, Co-Chief Investment Officer |
1992
MASTER FUND CO-INVEST SPC - SERIES 4 SEGREGATED PORTFOLIO, | |||
By: | Highbridge
Capital Management, LLC, as Trading Manager and not in its individual capacity | ||
By: | /s/ Xxxxxxxx Xxxxx | ||
Name: | Xxxxxxxx Xxxxx | ||
Title: | Managing Director, Co-Chief Investment Officer |
[Signature Page to Amendment No. 7]
BLACKROCK
DIVERSIFIED PRIVATE DEBT FUND MASTER LP, | |||
By: | BlackRock
Financial Management, Inc., its manager | ||
By: | /s/ Xxxx Xxxxxx | ||
Name: | Xxxx Xxxxxx | ||
Title: | Authorized Signatory |
GCO
II AGGREGATOR 6 L.P., | |||
By: | BlackRock
Financial Management, Inc., its manager | ||
By: | /s/ Xxxx Xxxxxx | ||
Name: | Xxxx Xxxxxx | ||
Title: | Authorized Signatory |
GCO
II AGGREGATOR 2 L.P., | |||
By: | BlackRock
Financial Management, Inc., its manager | ||
By: | /s/ Xxxx Xxxxxx | ||
Name: | Xxxx Xxxxxx | ||
Title: | Authorized Signatory |
[Signature Page to Amendment No. 7]
CROWDOUT
CAPITAL LLC, | |||
By: | /s/ Xxxxx Xxxxxxx | ||
Name: | Xxxxx Xxxxxxx | ||
Title: | Managing Member |
CROWDOUT
CREDIT OPPORTUNITIES FUND LLC, | |||
By: | /s/ Xxxxx Xxxxxxx | ||
Name: | Xxxxx Xxxxxxx | ||
Title: | Managing Member |
[Signature Page to Amendment No. 7]
XXXXXXXX
XXXXXXXXX, |
||
/s/ Xxxxxxxx Xxxxxxxxx |
[Signature Page to Amendment No. 7]
AGENT: | |||
XXXXXX XXXXXXXXXX SECURITIES, as Agent | |||
By: | /s/ Xxxxx Xxxxxxx | ||
Name: | Xxxxx Xxxxxxx | ||
Title: | Head of Fixed Income |
[Signature Page to Amendment No. 7]
SCHEDULE I
Post-Closing Matters
1. | On or before July 30, 2024 (or such later date as the Agent (at Required Lender direction) or the Required Lenders may agree, which may be by e-mail), the Loan Parties shall use its best efforts to cause Norfolk Southern to record the plat with respect to the NS Disposition. |
2. | On the date that is fifteen (15) days following the recordation of the plat with respect to the NS Disposition (or such later date as the Agent (at Required Lender direction) or the Required Lenders may agree, which may be by e-mail), the Loan Parties shall deliver an updated title policy with respect to the Real Property associated with the Mobile Refinery. |
EXHIBIT A
Conformed Loan Agreement
[See attached.]
EXHIBIT B
Notice of Borrowing
Loan and Security Agreement – Vertex Refining Alabama LLC
Execution Version
(Conformed through Amendment Number SixSeven
and Limited Consent and
Waiver to
Loan and Security
Agreement dated June 25July
24, 2024)
LOAN AND SECURITY AGREEMENT
Dated as of April 1, 2022
among
VERTEX REFINING ALABAMA LLC,
as the Borrower,
VERTEX ENERGY, INC.,
as Parent and as a Guarantor,
CERTAIN DIRECT AND INDIRECT SUBSIDIARIES OF PARENT PARTY HERETO,
as Guarantors,
THE LENDERS PARTY HERETO,
CANTOR XXXXXXXXXX SECURITIES,
as Agent
TABLE OF CONTENTS
Page | |||
1. | Definitions and Construction. | ||
1.1 | Definitions | ||
1.2 | Divisions | ||
1.3 | Other Interpretive Provisions | ||
2. | Term Loan and Terms of Payment. | ||
2.1 | Term Loan | ||
2.2 | Use of Proceeds; The Term Loan | ||
2.3 | Procedure for Making the Term Loan; Interest | ||
2.4 | Payments of Principal and Interest | ||
2.5 | Fees and Expenses | ||
2.6 | Prepayments | ||
2.7 | Other Payment Terms | ||
2.8 | Increased Costs | ||
2.9 | Taxes | ||
2.10 | Term | ||
2.11 | Issuance of Warrants | ||
2.12 | Certain Tax Considerations; Investment Unit Allocation | ||
2.13 | Uncommitted Incremental Facility | ||
3. | Conditions Precedent. | ||
3.1 | Conditions Precedent to the Closing Date | ||
4. | Creation of Security Interest. | ||
4.1 | Grant of Security Interest | ||
4.2 | Duration of Security Interest | ||
4.3 | Possession of Collateral | ||
4.4 | Delivery of Additional Documentation Required | ||
4.5 | Right to Inspect | ||
4.6 | Authorization to File | ||
5. | Representations and Warranties | ||
5.1 | Due Organization and Qualification | ||
5.2 | Authority and Power | ||
5.3 | Subsidiaries | ||
5.4 | Conflict with Other Instruments, etc. | ||
5.5 | Enforceability | ||
5.6 | No Prior Encumbrances | ||
5.7 | Name; Location of Chief Executive Office, Principal Place of Business and Collateral |
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TABLE OF CONTENTS
(continued)
Page | |||
5.8 | Litigation; Governmental Action | ||
5.9 | Financial Statements | ||
5.10 | Solvency | ||
5.11 | Taxes; Pension Plans | ||
5.12 | Consents and Approvals | ||
5.13 | Intellectual Property | ||
5.14 | Accounts | ||
5.15 | Environmental Matters | ||
5.16 | Government Consents | ||
5.17 | Full Disclosure | ||
5.18 | Inventory | ||
5.19 | Sanctioned Persons | ||
5.20 | Foreign Assets Control Regulations, Etc. | ||
5.21 | Status | ||
5.22 | Other Permitted Amendments to Disclosure Letter; Certificate of Title Collateral | ||
5.23 | Tax Classification | ||
5.24 | Title to Securities | ||
6. | Affirmative Covenants. | ||
6.1 | Good Standing | ||
6.2 | Government Compliance | ||
6.3 | Financial Statements, Reports, Certificates | ||
6.4 | Certificates of Compliance; Disclosure Letter Updates | ||
6.5 | Notices | ||
6.6 | Taxes | ||
6.7 | Maintenance | ||
6.8 | Insurance | ||
6.9 | Environmental Laws | ||
6.10 | Intellectual Property Rights | ||
6.11 | Formation or Acquisition of Subsidiaries | ||
6.12 | Further Assurances | ||
6.13 | Inventory, Returns | ||
6.14 | Delivery of Third-Party Agreements | ||
6.15 | Inspections and Rights to Consult with Management | ||
6.16 | Privacy and Data Security | ||
6.17 | Deposit Accounts/Securities Accounts | ||
6.18 | Operating Covenants | ||
6.19 | Post-Closing Matters | ||
6.20 | Most Favored Lender | ||
6.21 | Access Rights to Advisors | ||
6.22 | Engagement and Retention of Chief Restructuring Officer | 110 | |
6.23 | Additional Covenants of the Borrower | 110 | |
6.24 | Restructuring Milestones | 111 |
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TABLE OF CONTENTS
(continued)
Page | |||
6.25 | Additional Financings | 111 | |
7. | Negative Covenants. | ||
7.1 | Chief Executive Office; Location of Collateral | ||
7.2 | Extraordinary Transactions and Disposal of Collateral | ||
7.3 | Restructure | ||
7.4 | Liens | ||
7.5 | Indebtedness, Disqualified Equity Interests and Preferred Stock | ||
7.6 | Investments | ||
7.7 | Conversion Expenditures | ||
7.8 | Transactions with Affiliates | ||
7.9 | Stock Certificates | ||
7.10 | Compliance | ||
7.11 | Deposit Accounts | ||
7.12 | Equipment | ||
7.13 | Restrictions on Use of Proceeds | ||
7.14 | Accounting Changes; Change in Nature of Business; Foreign Operations | ||
7.15 | Burdensome Agreements | ||
7.16 | Restricted Payments; Prepayments of certain Indebtedness | ||
7.17 | Amendments or Waivers of Certain Related Agreements | ||
7.18 | Activities of Parent | ||
7.19 | Financial Covenant | ||
8. | Events of Default. | ||
8.1 | Payment Default | ||
8.2 | Certain Covenant Defaults | ||
8.3 | Other Covenant Defaults | ||
8.4 | Attachment | ||
8.5 | Other Agreements | ||
8.6 | Judgments | ||
8.7 | Misrepresentations | ||
8.8 | Enforceability | ||
8.9 | Bankruptcy Event | ||
8.10 | [Reserved]. | ||
8.11 | [Reserved]. | ||
8.12 | Cross Default | ||
8.13 | ERISA | ||
8.14 | Change of Control | ||
8.15 | Collateral Documents | ||
8.16 | Intercreditor and Subordination | ||
8.17 | Loss of Material Contracts |
-iii-
TABLE OF CONTENTS
(continued)
Page | |||
9. | Agent and Lenders’ Rights and Remedies. | ||
9.1 | Rights and Remedies | ||
9.2 | Waiver by the Loan Parties | ||
9.3 | Effect of Sale | ||
9.4 | Power of Attorney in Respect of the Collateral | ||
9.5 | Lender Expenses | ||
9.6 | Remedies Cumulative | ||
9.7 | Reinstatement of Rights | ||
9.8 | Share Collateral | ||
9.9 | Payments after an Event of Default | ||
10. | Waivers; Indemnification. | ||
10.1 | Demand; Protest | ||
10.2 | Liability for Collateral | ||
10.3 | Indemnification; Lender Expenses | ||
11. | Notices. | ||
12. | Agent Provisions. | ||
12.1 | Appointment and Authorization | ||
12.2 | Agent in Individual Capacity; Lender as Agent | ||
12.3 | Exculpatory Provisions | ||
12.4 | Exculpation; Limitation of Liability | ||
12.5 | Credit Decisions | ||
12.6 | Indemnification | ||
12.7 | Successor Agents | ||
12.8 | Agent Generally | ||
12.9 | Reliance | ||
12.10 | Notice of Default | ||
12.11 | Erroneous Payments | ||
12.12 | Collateral Matters | ||
13. | Guaranty. | ||
13.1 | Guaranty | ||
13.2 | Rights of Lenders | ||
13.3 | Certain Waivers | ||
13.4 | Obligations Independent. | ||
13.5 | Subrogation | ||
13.6 | Termination; Reinstatement. | ||
13.7 | Stay of Acceleration | ||
13.8 | Condition of Borrower |
-iv-
TABLE OF CONTENTS
(continued)
Page | |||
13.9 | Appointment of Borrower | ||
13.10 | Right of Contribution | ||
14. | General Provisions. | ||
14.1 | Successors and Assigns. | ||
14.2 | |||
14.3 | Severability of Provisions | ||
14.4 | Entire Agreement; Construction; Amendments and Waivers. | ||
14.5 | Reliance | ||
14.6 | [Reserved] | ||
14.7 | Counterparts | ||
14.8 | Survival | ||
14.9 | Publicity | ||
14.10 | Keepwell; Acknowledgement Regarding Any Supported QFCs | ||
14.11 | Relationship of Parties | ||
14.12 | Confidentiality | ||
14.13 | Patriot Act/Freedom Act | ||
14.14 | Governing Law; Jurisdiction; Waiver of Jury Trial | ||
14.15 | Replacement of |
||
14.16 | Counterparts | ||
14.17 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | ||
14.18 | Consent to A&R Intercreditor Agreement | ||
14.19 | Intercreditor Agreement Governs | ||
14.20 | Myrtle Grove; Heartland Acknowledgement |
-v-
LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, this “Agreement”) is entered into as of April 1, 2022, by and among Vertex Energy, Inc., a Nevada corporation (“Parent”), Vertex Refining Alabama LLC, a Delaware limited liability company (“Borrower”), each of Parent’s direct and indirect Subsidiaries from time to time party hereto listed on Schedule 1 hereto other than Excluded Subsidiaries (as hereinafter defined) (collectively, the “Subsidiary Guarantors” and each, individually, a “Subsidiary Guarantor”; the Subsidiary Guarantors, together with Parent, each a “Guarantor” and collectively, the “Guarantors”), Xxxxxx Xxxxxxxxxx Securities (“Cantor”) as administrative agent and collateral agent for the Lenders (“Agent”) and the lenders from time to time party hereto (collectively with the Initial Lenders, the “Lenders” and each, a “Lender”).
RECITALS
Borrower
has requested that the Lenders make available to the Borrower (i) a senior secured term loan in an aggregate principal
amount equal to $125,000,000 on the Closing Date (as defined below), (ii) a senior secured term loan in an aggregate
principal amount equal to $40,000,000 on the First Amendment Effective Date (as defined below), (iii) a senior secured term
loan in an aggregate principal amount equal to $50,000,000 on the Fifth Amendment Effective Date (as defined below), (iv) a
senior secured term loan in an aggregate principal amount equal to $15,000,000 on the Sixth Amendment Effective Date (as
defined below), plus any June PIK Fee Amounts and, (v)
a senior secured term loan in an aggregate principal amount equal to $20,000,000 on the Seventh Amendment Effective Date (as
defined below), plus any JS PIK Fee Amounts in consideration for the limited consent granted in Amendment Number Seven and
(vi) additional uncommitted term loans in an aggregate principal amount of up to $25,000,000 to be made
available to the Borrower by and upon discretion of the Incremental Term Loan Lenders providing such Incremental Term Loan
Commitments subject to the consent of the Lenders party to this Agreement immediately prior to any such Incremental Term Loan
Commitments.
In consideration of amendments and limited consent requested by the Borrower in Amendment Number Seven, an additional 2024 Term Loan in an aggregate principal amount of the July PIK Fee Amount shall be deemed to have been made on the Seventh Amendment Effective Date, on a pro rata basis, to the Lenders holding Term Loans hereunder immediately prior to the Seventh Amendment Effective Date.
The Lenders are willing to make available the senior secured term loan facility described herein, subject to and in accordance with the terms and conditions set forth in this Agreement.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, parties agree as follows:
1. | Definitions and Construction. |
1.1 Definitions. As used in this Agreement, the following terms shall have the following definitions:
“2023 Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of the Fifth Amendment Effective Date, by and among Parent and the other Persons party thereto as “Holders” thereunder, as the same may be amended, restated, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms thereof.
“2023 Term Loan” means the term loan funded by the 2023 Term Loan Lenders to the Borrower on the Fifth Amendment Effective Date pursuant to Section 2.1(c) in an aggregate amount equal to the 2023 Term Loan Commitment.
“2023 Term Loan Commitment” means as to each 2023 Term Loan Lender, its obligation to make 2023 Term Loans to the Borrower, on the Fifth Amendment Effective Date, in the amount opposite such Xxxxxx’s name on Schedule 2.1(a) in an aggregate amount not to exceed $50,000,000.
“2023 Term Loan Lender” means each Lender with a 2023 Term Loan Commitment or that holds 2023 Term Loans.
“2023 Warrant Agreement” means that certain Warrant Agreement, dated as of the Fifth Amendment Effective Date, by and between Parent and Warrant Agent, as the same may be amended, restated, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms thereof. The Agent shall have no obligation to monitor the terms of the 2023 Warrant Agreement.
“2023 Warrants” means the warrants to purchase shares of common stock of Parent issued by Parent to the 2023 Term Loan Lenders (or at the 2023 Term Loan Lender’s option, an Affiliate or Approved Fund of such 2023 Term Loan Lender) on the Fifth Amendment Effective Date pursuant to Section 2.11, which warrants are governed by and subject to the terms of the 2023 Warrant Agreement.
“2024 Borrowing Date” has the meaning set forth in Amendment Number Six.
“2024 Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of the Sixth Amendment Effective Date, by and among Parent and the other Persons party thereto as “Holders” thereunder, as the same may be amended, restated, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms thereof.
“2024 Term
Loan” means the term loan funded by the 2024 Term Loan Lenders to the Borrower on the Sixth
Amendment Effective2024 Borrowing Date
pursuant to Section 2.1(d) in an aggregate
amount equal to the 2024 Term Loan Commitment plus any June
PIK Fee Amount.
-2-
“2024 Term Loan Commitment” means as to each 2024 Term Loan Lender, its obligation to make 2024 Term Loans to the Borrower, on the Sixth Amendment Effective Date, in the amount opposite such Xxxxxx’s name on Schedule 2.1(a) in an aggregate amount not to exceed $15,000,000 (exclusive of any June PIK Fee Amounts).
“2024 Term Loan Lender” means each Lender with a 2024 Term Loan Commitment or that holds 2024 Term Loans.
“2024 Warrant Agreement” means that certain Warrant Agreement, dated as of the Sixth Amendment Effective Date, by and between Parent and Warrant Agent, as the same may be amended, restated, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms thereof. The Agent shall have no obligation to monitor the terms of the 2024 Warrant Agreement.
“2024 Warrants” means the warrants to purchase shares of common stock of Parent issued to the 2024 Term Loan Lenders (or at the 2024 Term Loan Lender’s option, an Affiliate or Approved Fund of such 2024 Term Loan Lender) which have funded 2024 Term Loans pursuant to Section 2.1(d) on the Sixth Amendment Effective Date issued by Parent pursuant to Section 2.11, which warrants are governed by and subject to the terms of the 2024 Warrant Agreement.
“A&R Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the Closing Date, as amended and restated as of the Fourth Amendment Effective Date and as further amended and restated as of June 3, 2024, by and between the Agent, the Intermediation Facility Agent, and acknowledged by the Loan Parties.
“Account” is any “account” as defined in the Code, and includes, without limitation, all accounts receivable and other sums owing to any Loan Party.
“Account Debtor” is any “account debtor” as defined in the Code with such additions to such term as may hereafter be made.
“Acquisition Side Letter” means that certain side letter dated as of February 25, 2022, by and among Parent, Tensile – Vertex Holdings LLC, and Tensile-Myrtle Grove Acquisition Corporation.
“Additional 2024 Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of the Seventh Amendment Effective Date, by and among Parent and the other Persons party thereto as “Holders” thereunder, as the same may be amended, restated, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms thereof.
“Additional 2024 Warrant Agreement” means that certain Warrant Agreement, dated as of the Seventh Amendment Effective Date, by and between Parent and Warrant Agent, as the same may be amended, restated, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms thereof. The Agent shall have no obligation to monitor the terms of the Additional 2024 Warrant Agreement.
-3-
“Additional 2024 Warrants” means the warrants to purchase shares of common stock of Parent issued to the 2024 Term Loan Lenders (or at the 2024 Term Loan Lender’s option, an Affiliate or Approved Fund of such 2024 Term Loan Lender) issued by Parent pursuant to Section 2.11, which warrants are governed by and subject to the terms of the Additional 2024 Warrant Agreement.
“Additional Covenant” means any maintenance financial covenant or similar requirement applicable to any Loan Party (regardless of whether such provision is labeled or otherwise characterized as a covenant) required to be maintained under any Subject Indebtedness, including any defined terms as used therein and including any grace periods and/or equity or other cure rights with respect thereto, the subject matter of which either (i) is similar to that of any covenant in Section 7.19 of this Agreement, or related definitions in this Agreement, but contains one or more percentages, amounts, formulas or other provisions that are more restrictive as to any Loan Party or more beneficial to the holder or holders of the Indebtedness to which the document containing such covenant or similar restriction relates than as set forth herein (and such covenant or similar restriction shall be deemed an Additional Covenant only to the extent that it is more restrictive or more beneficial) or (ii) is different from the subject matter of any covenant in Section 7.19 of this Agreement, or the related definitions in this Agreement.
“Additional Secured Obligations” means (x) all fees under the Loan Documents and costs and expenses incurred in connection with enforcement and collection of the Secured Obligations (including the out-of-pocket fees, charges and disbursements of counsel for each of the Agent and the Lenders), in each case whether direct or indirect (including those acquired by assumption), matured or unmatured, absolute or contingent, primary or secondary, liquidated or unliquidated, disputed or undisputed, joint, joint and several, legal, equitable, secured or unsecured, due or to become due, now existing or hereafter arising whether or not any claim for such Indebtedness, liability or obligation is discharged, stayed or otherwise affected by any proceeding under any Debtor Relief Law and (y) interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided that (x) Additional Secured Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party and (y) Additional Secured Obligations shall not include any obligations (including, without limitation, any Transaction Obligations and Related Xxxxxx (in each case, under and as defined under the Intermediation Facility (as in effect on the Closing Date)) under any Intermediation Facility Document, including, without limitation, by virtue of setoff or indemnification rights under the Intermediation Facility Documents.
“Additional Term Loan” means the term loan funded by the Lenders to the Borrower on the First Amendment Effective Date pursuant to Section 2.1(b) in an aggregate amount equal to the Additional Term Loan Commitment.
“Additional Term Loan Commitment” means as to each Additional Term Loan Lender, its obligation to make Additional Term Loans to the Borrower, on the First Amendment Effective Date, in the amount opposite such Xxxxxx’s name on Schedule 2.1(a) in an aggregate amount not to exceed $40,000,000. For the avoidance of doubt, as of the Fifth Amendment Effective Date, the Additional Term Loan Commitment equals $0.
-4-
“Additional Term Loan Lender” means each Lender with an Additional Term Loan Commitment or that holds Additional Term Loans.
“Additional Warrant Agreement” means that certain Warrant Agreement, dated as of the First Amendment Effective Date, by and between Parent and Warrant Agent, as the same may be amended, restated, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms thereof, including by the Additional Warrant Agreement Amendment. The Agent shall have no obligation to monitor the terms of the Additional Warrant Agreement.
“Additional Warrant Agreement Amendment” means Amendment No. 1 to the Warrant Agreement, dated as of the Fifth Amendment Effective Date, by and between Parent and the Warrant Agent.
“Additional Warrants” means the warrants to purchase shares of common stock of Parent issued by Parent to the Initial Lenders (or at the Initial Lender’s option, an Affiliate or Approved Fund of such Initial Lender) on the First Amendment Effective Date pursuant to Section 2.11, which warrants are governed by and subject to the terms of the Additional Warrant Agreement.
“Administrative Questionnaire” means with respect to each Lender, an administrative questionnaire in the form provided or approved by Agent (which form shall be reasonable in light of its scope and purpose) and submitted to Agent duly completed by such Lender.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to any Person, any Person that owns or Controls such Person, any Person that Controls or is Controlled by or is under common Control with such Person or each of such Person’s senior executive officers, directors, members or partners. Notwithstanding anything to the contrary, no Secured Party (nor any of their Affiliates or Approved Funds), and none of Macquarie Energy North America Trading Inc., Shell Trading (US) Company, Equilon Enterprises LLC d/b/a Shell Oil Products US, Shell Chemical LP, Synergy Supply & Trading LLC, and Idemitsu Apollo Renewable Corp. (or any of their respective Affiliates) shall be an Affiliate of any Loan Party or of any Subsidiary of any Loan Party.
“Agent” has the meaning given to such term in preamble to this Agreement.
-5-
“Agent Fee Letter” means that certain Agent Fee Letter, dated as of the Closing Date, by and between Parent, Borrower and Agent, as may be amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
“Amendment Number Five” means that certain Amendment Number Five to Loan and Security Agreement, dated as of the Fifth Amendment Effective Date, by and among, among others, the Loan Parties, the Agent and the Lenders party thereto.
“Amendment Number Four” means that certain Amendment Number Four to Loan and Security Agreement, dated as of the Fourth Amendment Effective Date, by and among, among others, the Loan Parties, the Agent and the Lenders party thereto.
“Amendment Number One” means that certain Amendment Number One to Loan and Security Agreement, dated as of the First Amendment Effective Date, by and among, among others, the Loan Parties, the Agent and the Lenders party thereto.
“Amendment Number One Fee Letter” has the meaning set forth in the definition of the term “Fee Letter”.
“Amendment Number Seven” means that certain Amendment Number Seven and Limited Consent to Loan and Security Agreement, dated as of the Seventh Amendment Effective Date, by and among, among others, the Loan Parties, the Agent and the Lenders party thereto.
“Amendment Number Seven Fee Letter” has the meaning set forth in the definition of the term “Fee Letter”.
“Amendment Number Six” means that certain Amendment Number Six and Limited Consent to Loan and Security Agreement, dated as of the Sixth Amendment Effective Date, by and among, among others, the Loan Parties, the Agent and the Lenders party thereto.
“Amendment Number Six Fee Letter” has the meaning set forth in the definition of the term “Fee Letter”.
“Amendment Number Three” means that certain Amendment Number Three to Loan and Security Agreement, dated as of January 8, 2023, by and among, among others, the Loan Parties, the Agent and the Lenders party thereto.
“Amendment Number Two” means that certain Amendment Number Two to Loan and Security Agreement, dated as of September 30, 2022, by and among, among others, the Loan Parties, the Agent and the Lenders party thereto.
“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010, as amended, and all other Applicable Laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business.
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“Anti-Money Laundering Laws” means the Applicable Laws, statutes, regulations or rules in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto, including, but not limited to, the Bank Secrecy Act (31 U.S.C. § 5311 et seq.) and the USA Patriot Act.
“Applicable Exit Fee” means all or any of the Exit Fee, the Exit Fee 2024 and the JS Exit Fee, as applicable for the context.
“Applicable Law” means, as to any Person, all applicable Laws of any Governmental Authority binding upon such Person or to which such a Person is subject.
“Applicable Rate” means with respect to any Term Loan, a percentage equal to the Base Rate plus 10.25% per annum.
“Approved Acquisitions” means (a) the Mobile Refinery Acquisition, (b) [reserved], (c) the acquisition pursuant to the Myrtle Grove Purchase Agreement, (d) the acquisition pursuant to the Heartland Purchase Agreement and (e) any Ordinary Course Acquisitions.
“Approved Bank” has the meaning ascribed thereto in the definition of “Cash Equivalents” contained herein.
“Approved Forecast” has the meaning ascribed thereto in Section 6.23(a)(i).
“Approved
Fund” means (a) with respect to any Lender other than the
JS Lender, any Fund that is administered
or managed by (a),
a Lender, (b) an Affiliate of a Lender or (c)
an entity or an Affiliate of an entity that administers or manages a Lender. and
(b) with respect to the JS
Lender, any lineal descendant, sibling or other family member(s) of Xxxxxxxx Xxxxxxxxx,
and each of their respective heirs and estates, and any partnerships, trusts or other investment
vehicles formed for the benefit of any of the above.
“Assignment” has the meaning assigned to it in Section 14.1(b).
“Assignment Agreement” means an agreement substantially in the form of Exhibit C attached hereto or such other form as approved by Agent.
“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 5 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).
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“Bank Product” means any one or more of the following financial products or accommodations extended to any Loan Party or any of its 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 Hedging Agreements.
“Bank Product Agreements” means those agreements entered into from time to time by any Loan Party or any of its Subsidiaries with a Bank Product Provider in connection with the obtaining of any of the Bank Products.
“Bank Product Obligations” means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by each Loan Party and its 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, in each case, other than Hedge Obligations, (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; provided that Bank Product Obligations shall not include any obligations (including, without limitation, any Transaction Obligations and Related Xxxxxx (in each case, under and as defined under the Intermediation Facility (as in effect on the Closing Date)) under any Intermediation Facility Document, including, without limitation, by virtue of setoff or indemnification rights under the Intermediation Facility Documents.
“Bank Product Provider” means each Person providing the Bank Products to the Loan Parties.
“Bankruptcy Code” means (x) Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute, or (y) equivalent legislation in any jurisdiction applicable to the Loan Parties.
“Bankruptcy Event” shall mean the occurrence of any of the following:
a) | Parent or any other Loan Party becomes insolvent within the meaning of 11 U.S.C. §101(32) or any other Debtor Relief Law applicable to the Loan Parties; |
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b) | Parent or any other Loan Party generally does not or becomes unable to pay its debts or meet its liabilities as the same become due, or admits in writing its inability to pay its debts generally, or declares any general moratorium on its Indebtedness, or proposes a compromise or arrangement or deed of company between it and any class of its creditors; |
c) | Parent or any other Loan Party commits an act of bankruptcy or makes an assignment of its property for the general benefit of its creditors or makes a proposal of such an assignment (or files a notice of its intention to do so); |
d) | Parent or any other Loan Party institutes a proceeding seeking to adjudicate it as insolvent, or seeking liquidation, dissolution, winding-up, reorganization, restructuring, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally (or any class of creditors), or composition of it or its debts or any other relief, under any applicable Debtor Relief Law or at common law or in equity; |
e) | Parent or any other Loan Party applies for the appointment of, or the taking of possession by, a receiver, interim receiver, receiver/manager, sequestrator, conservator, custodian, administrator, trustee, liquidator, voluntary administrator, receiver and manager or other similar official for it or any substantial part of its property; |
f) | Any petition is filed, application made or other proceeding instituted against or in respect of Parent or any other Loan Party: |
i. | seeking to adjudicate it as insolvent; |
ii. | seeking a receiving order against it; |
iii. | seeking liquidation, dissolution, winding-up, reorganization, restructuring, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally (or any class of creditors), deed of company arrangement or composition of it or its debts or any other relief under any Law, now or hereafter in effect relating to bankruptcy, winding-up, insolvency, reorganization, receivership, plans of arrangement or relief or protection of debtors or at common law or in equity; |
iv. | seeking the entry of an order for relief or the appointment of, or the taking of possession by, a receiver, interim receiver, receiver/manager, sequestrator, conservator, custodian, administrator, trustee, liquidator, voluntary administrator, receiver and manager or other similar official for it or any substantial part of its property; |
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and, in each case under this clause (f), such petition, application or proceeding continues undismissed, or unstayed and in effect, for a period of sixty (60) days after the institution thereof; provided that if an order, decree or judgment is granted or entered (whether or not entered or subject to appeal) against Parent or any other Loan Party thereunder in the interim, such grace period will cease to apply; provided, further, that if Parent or any other Loan Party files an answer admitting the material allegations of a petition filed against it in any such proceeding prior to such date, the grace period will cease to apply;
g) | Parent or any other Loan Party takes any action, corporate or otherwise, including, an affirmative vote by the Board or the board of directors (or equivalent management or oversight body) of any other Loan Party, to commence any Insolvency Proceeding or to approve, effect, consent to or authorize any of the actions described in the clauses (a)-(f) above, or otherwise acts in furtherance thereof; |
h) | Any other event or circumstance occurs which, under applicable Debtor Relief Laws, has an effect equivalent to any of the events or circumstance referred to in the other clauses of this definition. |
“Base Rate” shall be, for any day, the greater of (i) the per annum rate publicly quoted from time to time by The Wall Street Journal as the “Prime Rate” in the United States minus 1.50% as in effect on such day and (ii) the sum of the Federal Funds Rate for such day plus 1/2 of 1.0%. In no event shall the Base Rate be less than 1.0%.
“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.
“BlackRock Lenders” means each of the Lenders party hereto from time to time that are affiliated with or managed by BlackRock Financial Management, Inc. or any Affiliate thereof.
“Board” means Parent’s board of directors (or equivalent management or oversight body) as elected from time to time in accordance with the Organization Documents and bylaws of Parent in effect from time to time.
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“Books” means, as to any Person, the books and records, including: ledgers; records concerning such Person’s assets or liabilities, including the Collateral, business operations or financial condition; and all computer programs, or data storage, and the related devices and equipment, containing such information.
“Borrower” has the meaning set forth in the introductory paragraph hereto.
“Borrower Joinder Agreement” means the agreement substantially in the form of Exhibit B-1 hereto.
“Borrower Materials” has the meaning given to such term in Section 6.3(c).
“Budget” has the meaning given to such term in Section 6.3(f).
“Business Day” means any day that is not a Saturday, Sunday, or other day on which banks in the State of New York are authorized to close under the laws of, or are in fact closed in, New York. “Cantor” has the meaning given to such term in preamble to this Agreement.
“Capital Lease Obligations” means, as to any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP (consistently applied), and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP (consistently applied); provided that any lease that would properly be recognized as an “operating lease” by Parent as of the Closing Date shall continue to be treated as an operating lease and shall not constitute a Capital Lease Obligation for purposes of this Agreement.
“CARB” means the California Air Resources Board.
“Cash Equivalents” means, as to any Person: (a) securities issued or directly and guaranteed or insured by the United States or any agency or instrumentality thereof having maturities of not more than twelve (12) months from the date of acquisition; (b) securities issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than twelve (12) months from the date of acquisition and having one of the two highest ratings from either Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc., or Xxxxx’x Investors Service, Inc.; (c) certificates of deposit, denominated solely in U.S. Dollars, maturing within 180 days after the date of acquisition, issued by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia or that is a U.S. subsidiary of a foreign commercial bank; in each of the foregoing cases, solely to the extent that: (i) such commercial bank’s short-term commercial paper is rated at least A-1 or the equivalent by Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc., or at least P-1 or the equivalent thereof by Xxxxx’x Investors Service, Inc. (any such commercial bank, an “Approved Bank”); or (ii) the par amount of all certificates of deposit acquired from such commercial bank are fully insured by the Federal Deposit Insurance Corporation; or (d) commercial paper issued by any Approved Bank (or by the parent company thereof), in each case maturing not more than twelve months after the date of the acquisition thereof.
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“Cash
Flow Forecast” has the meaning assigned to it in Section
6.3(d).means
a projected statement of sources and uses of cash for the Borrower, prepared in accordance with Section 6.23(a)(i), for
the current and following 13 calendar weeks (but not any preceding weeks), including the anticipated uses of the proceeds of the
Loans for each week during such period. As used herein, “Cash
Flow Forecast” shall initially refer to the 13-week cash
flow forecast most recently delivered on or prior to the Seventh Amendment Effective Date and, thereafter, the most recent Cash
Flow Forecast delivered by the Borrower in accordance with Section 6.23(a)(i).
“Cash Management Services” means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, credit, purchasing debit card, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, treasury management services (including controlled disbursement services), cash pooling arrangements, 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.
“Casualty Event” means any material loss of or damage to any tangible property or interest in tangible property of Parent or any Subsidiary.
“Catalyst Assets” means any catalyst assets and inventory constituting catalyst, precious metals assets and precious metals inventory and all additions, accessions and all rights related thereto.
“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq.
“Certificate of Title Collateral” shall mean all Vehicles and Rolling Stock (to the extent covered by a certificate of title), in each case, with a fair market value in excess of $100,000.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
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“Change of Control” means an event or series of events by which:
(a) the direct or indirect Transfer (other than by way of merger or consolidation permitted hereunder), in one or a series of related transactions, of all or substantially all of the Properties or assets of Loan Parties taken as a whole, to any “person” (as that term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended);
(b) the adoption of a plan relating to the liquidation or dissolution of Parent;
(c) the consummation of any transaction (including any merger or consolidation), in one or a series of related transactions, the result of which is that any “person” (as that term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), becomes the beneficial owner, directly or indirectly, of more than 33% of the Equity Interest of Parent, measured by voting power rather than number of shares, units or the like;
(d) Parent fails to own and control, directly or indirectly, one hundred percent (100%) of the Equity Interests of (x) the Borrower and (y) each other Loan Party, unless, in the case of this clause (y), permitted hereunder;
(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 Parent such that a majority of the members of such Board are not Continuing Directors; or
(f) a “change of control” or any comparable term which would result in an “event of default”, termination event or similar or equivalent event would occur under, and as defined in, any other Indebtedness (with an aggregate principal amount, together with all related Indebtedness, in excess of the Threshold Amount) of the Loan Parties, shall have occurred.
“Closing Date” has the meaning assigned to it in Section 3.1.
“Code” means the Uniform Commercial Code as adopted and in effect in the State of New York, as amended from time to time, provided, that, to the extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern; provided further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, or priority of, or remedies with respect to, Agent’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions.
“Collateral” means the property described on Exhibit A attached hereto.
“Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Agent and the Required Lenders (it being agreed that the Agent shall not be obligated to enter into any agreement where it indemnifies a third party in Agent’s individual capacity) executed by (a) a bailee or other Person in possession of Collateral, and/or (b) any mortgagee or lessor of real property on which Collateral is stored, pursuant to which such Person (i) acknowledges the Agent’s Lien on the Collateral, (ii) releases or waives such Person’s Liens in such stored Collateral held by such Person or located on such real property, (iii) provides the Agent with access to such Collateral held by such bailee or other Person or located in or on such real property upon prior notice and on mutually agreeable terms and conditions, (iv) as to any mortgagee or landlord, provides the Agent with a reasonable time to sell and dispose of the Collateral from such real property on mutually agreeable terms and conditions, and (v) makes such other agreements with the Agent as the Agent may reasonably require, including but not limited to, leasehold mortgagee protections in favor of Agent to the extent such real property is subject to a Mortgage, in each case, as such agreements are amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
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“Collateral Assignment of Material Contracts” means that (x) certain Collateral Assignment of Material Contracts, dated as of the Closing Date, by Parent in favor of Agent relating to Material Contracts with Idemitsu Apollo Renewable Corp. and (y) any other collateral assignment of Material Contracts entered into after the Closing Date.
“Collateral Documents” means Article 4 of this Agreement, the Collateral Pledge Agreement, the Mortgages, if any, the Collateral Access Agreements, if any, any Control Agreement, each Collateral Assignment of Material Contracts, and all other instruments, documents, and agreements delivered by any Loan Party pursuant to this Agreement or any of the other Loan Documents which purport to grant to Agent, for the benefit of Secured Parties, a Lien on any real, personal, or mixed property of such Loan Party as security for the Secured Obligations and any power of attorney from time to time granted by Agent in relation to notating the Agent’s Lien on any Certificate of Title Collateral, in each case, as such Collateral Documents may be amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
“Collateral Pledge Agreements” mean, collectively, any pledge agreement relating to the Equity Interests or evidence of Indebtedness of any Subsidiary owned directly or indirectly by a Loan Party to the extent necessary or useful to perfect Agent’s security interest therein under Applicable Law, in each case, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
“Collateral Threshold Amount” means $250,000.
“Commercial Tort Claim” means any “commercial tort claim” as defined in the Code.
“Commitment Letter” means that certain Commitment Letter, dated as of the February 17, 2022, by and between Parent, Borrower and the Initial Lenders, as may be amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
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“Competitor” means any Person (other than the Parent or any of its Subsidiaries or any of their respective Affiliates) that is actively engaged in a Similar Business; provided, that 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 has no active control of management or governance, shall not be deemed to be a direct competitor for the purposes of this definition.
“Compliance Certificate” has the meaning given to such term in Section 6.4.
“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 Liquidity” means, for any period, an amount determined for the Loan Parties on a consolidated basis, equal to the aggregate sum of Unrestricted Cash of the Loan Parties; provided that any calculation of Consolidated Liquidity for any purpose hereunder shall include a certification from the Loan Parties to the Agent that all accounts payable included in such calculation are within stated invoices terms and are no more than 60 days past due.
“Construction Agreement” means that certain Construction Agreement dated on or about the Closing Date, by and between the Borrower (or its assignee, to the extent such assignee is a Loan Party) and Xxxxxxxx & Associates, Inc.
“Contingent Obligation” means, as applied to any Person, any obligation, whether contingent or otherwise, with respect to any indebtedness, lease, dividend, letter of credit of such Person or other obligation of another Person, including, without limitation, any obligation of such Person, with respect to (i) undrawn letters of credit, corporate credit cards, or merchant services issued or provided for the account of that Person; and (ii) all obligations arising under any agreement or arrangement designed to protect such Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided, however, that the term “Contingent Obligation” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determined amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by Agent in good faith; provided, however, that such amount shall not in any event exceed the maximum amount of the obligations under such guarantee or other support arrangement.
“Continuing Director” means (a) any member of the Board who was a director (or comparable manager) of Parent on the Closing Date, (b) any individual who becomes a member of the Board after the Closing Date if such individual was approved, appointed or nominated for election to the Board by a majority of the members of the Board on the Closing Date, and (c) any individual who becomes a member of the Board after the Closing Date if such individual was approved, appointed or nominated for election to the Board by a majority of the members of the Board referred to in clauses (a) and (b) constituting at the time of such approval, appointment or nomination at least a majority of that Board.
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“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the ability to directly or indirectly vote more than thirty percent (30%) of the outstanding voting stock of any Person. “Controlling” and “Controlled” have meanings correlative thereto.
“Control Agreement” means an account control agreement, the terms of which are reasonably satisfactory to Agent and Required Lenders (it being agreed that the Agent shall not be obligated to enter into any agreement where it indemnifies a third party in Agent’s individual capacity; provided that the Control Agreement entered into on or about the Closing Date is satisfactory to Agent), which is executed by Agent, each Loan Party and the applicable financial institution and/or securities/investment intermediary, and which perfects Agent’s (for itself and for the benefit of the Lenders) first priority security interest in the Loan Parties’ accounts maintained at such financial institution or securities/investment intermediary, in each case, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
“Copyrights” means any and all copyright rights in the United States (whether registered or unregistered and whether published or unpublished), copyright applications, copyright registrations and like protections in each work or authorship and derivative work thereof, together with any and all (i) rights and privileges arising under Applicable Law with respect thereto and (ii) renewals and extensions thereof.
“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 given to such term in Section 14.10(b).
“Covenant Suspension Period” means any period following the occurrence of the following events: (x) actual Consolidated Liquidity of at least $50,000,000 for at least 10 consecutive days and (y) delivery of a 13-week cash flow provided by A&M to the Lenders reflecting an additional 30 consecutive days of Consolidated Liquidity (immediately consecutive to the period in clause (x)) of at least $50,000,000 with assumptions therein reasonably acceptable to the Lenders and otherwise consistent with previously delivered models (other than (x) the September 30 Payment which shall not be deferred or waived in such assumptions and (y) for purposes of clarity, the 13-week cash flow shall include the certification from the Loan Parties to the Agent that all accounts payable included in such Consolidated Liquidity calculation are within stated invoices terms and are no more than 60 days past due), and automatically ending upon any Covenant Trigger Event.
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“Covenant Trigger Event” means the first date after a Covenant Suspension Period that Consolidated Liquidity is less than $50,000,000.
“Current Financial Statements” has the meaning given to such term in Section 5.9.
“CRO” has the meaning given to such term in Section 6.22(a).
“Debtor Relief Laws” means the Bankruptcy Code of the United States and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, arrangement, compromise, receivership, insolvency, reorganization, or similar debtor relief Laws (including applicable provisions of any corporate laws) of the United States or any state thereof or other applicable jurisdictions from time to time in effect.
“Default” means any event which with the passing of time or the giving of notice or both would become an Event of Default hereunder.
“Default Rate” means the per annum rate of interest equal to (i) the then Applicable Rate, plus (ii) 2% per annum.
“Defaulting Lender” means any Lender that:
(a) has failed to (i) fund any payments required to be made by it under the Loan Documents within two (2) Business Days after any such payment is due (excluding expense and similar reimbursements that are subject to good faith disputes) unless such Lender notifies Agent and the Borrower in writing that such failure is the result of such Xxxxxx’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or (ii) pay to Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due,
(b) has given written notice (and Agent has not received a revocation in writing), to the Borrower, Agent or has otherwise publicly announced (and Agent has not received notice of a public retraction) that such Xxxxxx believes it will fail to fund payments or purchases of participations required to be funded by it under the Loan Documents (unless such writing or public statement relates to such Xxxxxx’s obligation to fund a Term Loan hereunder and states that such position is based on such Xxxxxx’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), or
(c) has, or any Person that directly or indirectly controls such Lender has, (i) become subject to a voluntary or involuntary case under an Insolvency Proceeding, (ii) had a custodian, conservator, receiver or similar official appointed for it or any substantial part of such Person’s assets or (iii) made a general assignment for the benefit of creditors, been liquidated, or otherwise been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its assets to be, insolvent or bankrupt, and for this clause (c), Agent has determined that such Lender is reasonably likely to fail to fund any payments required to be made by it under the Loan Documents.
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“Deposit Account” means any “deposit account” as defined in the Code.
“Disclosure Amount” means $250,000.
“Disclosure Letter” means the disclosure letter/perfection certificate dated as of the Fifth Amendment Effective Date containing certain information and schedules delivered by the Loan Parties to Agent and the Lenders (as such disclosure letter/perfection certificate may be supplemented from time to time in accordance with the terms of this Agreement).
“Disqualified
Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests
into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or
is 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 Term Loans and all other Secured
Obligations that are accrued and payable including the Prepayment Premium and,
any Applicable Exit Fee or
Exit Fee 2024, as applicable, and the termination of the Term
Loan Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in
whole or in part, (c) provides for the payment of any cash dividend or any other scheduled payment constituting a return of capital,
or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified
Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date of the Term Loans at the
time of issuance; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of
any Loan Party or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests
solely because it may be required to be repurchased by any Loan Party in order to satisfy applicable statutory or regulatory obligations.
“Disqualified Institution”
shall mean any person that is (i) designated by the Borrower or Supermajority
Lenders by written notice delivered to Agent on or prior to the Closing DateSeventh
Amendment Effective Date and listed on Schedule 2 hereto or (ii) a competitorCompetitor
of the Parent or its Subsidiary Guarantors that has been identified by the Borrower to Agent, but excluding any affiliate
of any of the foregoing that is primarily engaged in, or
that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial
loans, bonds and similar extensions of credit or securities in the ordinary course and with respect to which the Disqualified
Institution does not, directly or indirectly, possess the power to direct or cause the direction of the investment policies of
such entity.
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“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.
“EMTS” means the EPA Moderated Transaction System, as defined in 40 C.F.R. §80.1401 and regulated under the RFS Program.
“EMTS Account” means Renewables AL’s EPA Moderated Transaction System Account for RINs maintained in the name of Renewables AL with EMTS, with identifier number 2215.
“Engineering Review” means a third party engineering review by a licensed professional engineer that confirms the Renewable Diesel Project has achieved Mechanical Completion.
“Environmental Attributes” means any and all credits, benefits, emission reductions, offsets and allowances, howsoever entitled, attributable to the production, sale, combustion or other use of Renewable Products, or their displacement or reduction in the use of conventional energy generation, greenhouse gas emissions, pollutants or transportation fuel, heating oil or jet fuel (“GHG Attributes”), including, without limitation, (i) any Regulatory Credits and (ii) Fuel Tax Credits.
“Environmental Claim” means any complaint, summons, citation, notice, request for information, notice of potential liability, notice of violation, directive, order, claim, suit, litigation, investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority or any other Person arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law or permit, license or approval issued thereunder; (ii) in connection with the actual or alleged presence, Release or threatened Release of Hazardous Materials; (iii) exposure to any Hazardous Materials; or (iv) in connection with any actual or alleged liability under Environmental Law arising from any damage, injury, threat or harm to human health or safety, natural resources or the environment.
“Environmental Law” means any federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, or rule of common law now or hereafter in effect and in each case as amended, or any binding and enforceable judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on any Loan Party and/or any Subsidiary thereof, relating to (i) the protection of human health, safety and the environment, (ii) the conservation, management or use of natural resources and wildlife, (iii) the manufacture, processing, handling, generation, use, disposal, production, storage, handling, treatment, Release, threatened Release or transport of, or exposure to, Hazardous Materials, (iv) occupational health and safety (to the extent relating to Hazardous Materials) or (v) pipeline safety, in each case as amended from time to time.
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“Environmental Liabilities” means all liabilities, contingent or otherwise (including any liability for damages, costs of medical monitoring, costs of environmental remediation or restoration, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) any violation of any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.
“Equity Interests” mean shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any Person, and any option, warrant, convertible debt or other right entitling the holder thereof to purchase or otherwise acquire any such equity interest.
“Equity Issuance” means, any issuance by any Loan Party or any of its Subsidiaries to any Person of its Equity Interests.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means, with respect to any Loan Party, any entity, trade or business (whether or not incorporated) under common control with the Loan Party within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) for purposes of provisions relating to Section 412 of the Internal Revenue Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure to meet the minimum funding standards of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) a determination that any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (d) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (e) a withdrawal by a Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (f) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan; (g) the filing of a notice of intent to terminate a Pension Plan, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (h) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Parent or any ERISA Affiliate; (j) receipt from the IRS of notice of the failure of any Pension Plan (or any other Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code, (k) the filing by a Loan Party or any ERISA Affiliate of an application with respect to a Pension Plan for a waiver of the minimum funding standard under Section 412(c) of the Code or Section 302(c) of ERISA, or (l) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Pension Plan.
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“Erroneous Payment” has the meaning assigned to it in Section 12.11(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 12.11(d)(i).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 12.11(d)(i).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 12.11(d)(i).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 12.11(e).
“Escrow Account” has the meaning ascribed to such term in the Escrow Agreement.
“Escrow Agent” means Cantor Xxxxxxxxxx Securities, in its capacity as escrow agent under the Escrow Agreement.
“Escrow Agreement” means that certain Escrow Agreement, dated as of March 2, 2022, by and among the Borrower, Parent, the Initial Lenders party thereto and the Escrow Agent.
“Escrow Funding Date” means the date upon which the net amounts constituting the Initial Term Loan were funded into the Escrow Account which was March 2, 2022.
“Event of Default” has the meaning given to such term in Article 8.
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“Excluded Account” means (a) any tax, trust, or payroll account (including, without limitation, accounts used for payroll, payroll taxes, workers’ compensation or unemployment compensation premiums or benefits and other employee wage and benefit payments to or for the benefit of any Loan Party’s employees or for other trust or fiduciary purposes of a Loan Party or accounts of a Loan Party used specifically and exclusively for holding any other taxes required to be collected or withheld by a Loan Party (including, without limitation, federal and state sales, use and excise taxes, customs duties, import duties and independent customs brokers’ charges) for which any Loan Party is or may reasonably be expected to be liable), so long as such deposit account contains only funds to be used exclusively for taxes, trust obligations and payroll obligations, (b) any account solely used to post cash collateral or margin to an Intermediation Facility Agent to secure any Intermediation Facility, (c) any account solely used to post cash collateral or margin to any Bank Product Provider to secure Non-LSA Xxxxxx up to an amount not to exceed $7,500,000 less any amounts secured under clause (m) of Permitted Liens, (d) any collections accounts and other accounts solely containing proceeds of collateral securing Permitted Indebtedness under clauses, (f), (r) or (s) thereof and (e) other deposit accounts, so long as at any time the balance in any such account does not exceed $250,000 and the aggregate balance in all such accounts does not exceed $1,000,000.
“Excluded Property” means, with respect to any Loan Party, (a) any property which, subject to the terms of clause (c) of “Permitted Indebtedness”, is subject to a Lien of the type described in clause (c) of “Permitted Liens” pursuant to documents that prohibit such Loan Party from granting any other Liens in such property, (b) Excluded Accounts, (c) (i) any contract, permit, license or any contractual obligation entered into by any Loan Party (A) that prohibits or requires the consent of any Person other than any Loan Party and its Affiliates (which consent has not been obtained) as a condition to the creation by such Loan Party of a Lien on any right, title or interest in such permit, license or contractual obligation or any equity interest related thereto or that would be breached or give the other party to the right to terminate such permit, license or contractual obligation as a result thereof or (B) to the extent that any requirement of law applicable thereto prohibits the creation of a Lien thereon, but only, with respect to the prohibition or requirement for consent in clauses (A) and (B), to the extent, and for as long as, such prohibition or requirement for consent (y) was not entered into in contemplation of this Agreement and (z) is not terminated or rendered unenforceable or otherwise deemed ineffective by the Code or any other requirement of law or by the receipt of the applicable Person whose consent is required, and (d) any “intent to use” trademark application for registration of a Trademark filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Xxxxxx Act with respect thereto.
“Excluded Subsidiary” means (x) as of the Fifth Amendment Effective Date, VRM-LA and (y) any Subsidiary that is prohibited, but only so long as such Subsidiary would be prohibited, by any contract entered into by any Loan Party or any Subsidiary acquired after the Closing Date (but only to the extent in existence on the Closing Date or, upon the acquisition of any Subsidiary and in respect of such Subsidiary, in existence on the date of acquisition thereof and, in each case, only to the extent not entered into in contemplation of this Agreement or is not terminated or rendered unenforceable or otherwise deemed ineffective by the Code or any other requirement of law) with one or more unaffiliated third parties, from providing a guaranty of the Secured Obligations or granting a Lien on its assets to secure the Secured Obligations or that would require third party contractual authorization to provide such a guaranty or grant such a Lien unless such authorization has been received (it being understood that the Loan Parties shall not be obligated to seek any authorization except to the extent it is commercially reasonable to do so); provided that the exclusion in this clause (y) shall in no way be construed to (A) apply to the extent that any described prohibition is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the Code or other applicable law, or (B) limit, impair, or otherwise affect any of the Agent’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (1) monies due or to become due under or in connection with the Equity Interests of such Excluded Subsidiary, or (2) any proceeds from the sale, license, lease, or other dispositions of the Equity Interests of such Excluded Subsidiary; provided that in the case of clauses (x) or (y) above, such Subsidiary or Subsidiaries shall, upon no longer constituting an “Excluded Subsidiary”, promptly (and, in all events, within 10 Business Days or such longer period as the Required Lenders shall reasonably agree) comply with Sections 6.11 and 6.12.
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“Excluded Swap Obligation” means, with respect to any Loan Party, any Hedge 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 14.1), or the grant by such Loan Party of a security interest to secure, such Hedge 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 Hedge Obligation. If a Hedge Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Hedge Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Term Loan or Term Loan Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Term Loan or Term Loan Commitment or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.9, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.9(g) and (d) any withholding Taxes imposed under FATCA.
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“Existing Convertible Notes” means the 6.25% Convertible Senior Notes due 2027 issued pursuant to the Existing Convertible Notes Indenture and listed in Section 8 of the Disclosure Letter.
“Existing Convertible Notes Indenture” means the Indenture, dated as of November 1, 2021, by and between Parent and U.S. Bank National Association, as Trustee, as in effect on the date hereof.
“Exit Fee” means (1) with respect to a partial payment, repayment or redemption of the outstanding 2023 Term Loans, the product of (x) the positive difference (if any), as of such date, of (i) the 2023 Term Loan Commitments of the 2023 Term Loan Lenders as of the Fifth Amendment Effective Date (and without giving effect to any subsequent repayments or reductions in such 2023 Term Loan Commitment amount) multiplied by 20.00% less (ii) the sum of (A) the aggregate amount of interest paid in cash to the 2023 Term Loan Lenders prior to such date on such principal amount being paid, repaid or redeemed (excluding, for the avoidance of doubt, any interest accrued at the additional 2.00% per annum under any applicable Default Rate), plus (B) the amount of interest paid in cash to the 2023 Term Loan Lenders to be paid on such date on such principal amount being paid, repaid or redeemed (excluding, for the avoidance of doubt, any interest accrued at the additional 2.00% per annum under any applicable Default Rate) multiplied by (y) (i) the principal amount of 2023 Term Loans being partially repaid, prepaid or redeemed in cash on such date divided by (ii) the 2023 Term Loan Commitments of the 2023 Term Loan Lenders as of the Fifth Amendment Effective Date (and without giving effect to any subsequent repayments or reductions in such 2023 Term Loan Commitment amount) and (2) with respect to a payment, repayment or redemption of all outstanding 2023 Term Loans in full, the positive difference (if any), as of such date, of (i) the 2023 Term Loan Commitments of the 2023 Term Loan Lenders as of the Fifth Amendment Effective Date (and without giving effect to any subsequent repayments or reductions in such 2023 Term Loan Commitment amount) multiplied by 20.00% less (ii) the sum of (A) the aggregate amount of interest paid in cash to the 2023 Term Loan Lenders prior to the date of such prepayment on such principal amount being paid, repaid or redeemed (excluding, for the avoidance of doubt, any interest accrued at the additional 2.00% per annum under any applicable Default Rate), plus (B) the amount of interest paid in cash to the 2023 Term Loan Lenders to be paid on the date of such prepayment on such principal amount being paid, repaid or redeemed (excluding, for the avoidance of doubt, any interest accrued at the additional 2.00% per annum under any applicable Default Rate), plus (C) the amount of Exit Fee paid to the 2023 Term Loan Lenders prior to such date.
“Exit Fee
2024” means (1) with respect to a partial payment, repayment or redemption of the outstanding 2024 Term Loans, the
product of (x) the positive difference (if any), as of such date, of (i) the June 2024 Term
Loan Commitments of the 2024 Term Loan Lenders as of the Sixth Amendment Effective DateCommitment plus
any July PIK Fee Amount (and
without giving effect to any subsequent repayments or reductions in such 2024 Term Loan Commitment amount) multiplied
by 20.00% less (ii) the sum of (A) the aggregate amount of interest paid in cash to the 2024 Term Loan Lenders prior to such
date on such principal amount being paid, repaid or redeemed (excluding, for the avoidance of doubt, any interest accrued at
the additional 2.00% per annum under any applicable Default Rate), plus (B) the amount of interest paid in cash to the 2024
Term Loan Lenders to be paid on such date on such principal amount being paid, repaid or redeemed (excluding, for the
avoidance of doubt, any interest accrued at the additional 2.00% per annum under any applicable Default Rate) multiplied by
(y) (i) the principal amount of 2024 Term Loans being partially repaid, prepaid or redeemed in cash on such date divided by
(ii) the June 2024 Term
Loan Commitments of the 2024 Term Loan Lenders as of the Sixth Amendment Effective DateCommitment plus
any July PIK Fee Amount (and
without giving effect to any subsequent repayments or reductions in such 2024
Term Loan Commitment amount) and (2) with respect to a payment, repayment
or redemption of all outstanding 2024 Term Loans in full, the positive difference (if any), as of such date, of (i) the June 2024 Term
Loan Commitments of the 2024 Term Loan Lenders as of the Sixth Amendment Effective DateCommitment plus
any July PIK Fee Amount (and
without giving effect to any subsequent repayments or reductions in such 2024 Term Loan Commitment amount)
multiplied by 20.00% less (ii) the sum of (A) the aggregate amount of interest paid in cash to the 2024 Term Loan Lenders
prior to the date of such prepayment on such principal amount being paid, repaid or redeemed (excluding, for the avoidance of
doubt, any interest accrued at the additional 2.00% per annum under any applicable Default Rate), plus (B) the amount of
interest paid in cash to the 2024 Term Loan Lenders to be paid on the date of such prepayment on such principal amount being
paid, repaid or redeemed (excluding, for the avoidance of doubt, any interest accrued at the additional 2.00% per annum under
any applicable Default Rate), plus (C) the amount of Exit Fee 2024 paid to the 2024 Term Loan Lenders prior to such
date.
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“Exit Fee Event” has the meaning assigned to it in Section 2.5(c).
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, 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), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Internal Revenue Code.
“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Fee
Letter” means (a) that certain Fee Letter, dated as of the February 17, 2022, by and between Parent, Borrower and
the Initial Lenders, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time, (b)
that certain Amendment Number One Fee Letter, dated as of the First Amendment Effective Date (the “Amendment Number
One Fee Letter”), by and between Parent, Borrower and the Lenders party thereto, as the same may be further amended
and restated, replaced, supplemented or otherwise modified from time to time, (c) that certain Limited Consent Fee Letter,
dated as of May 5, 2023, by and between Parent, Borrower and the Lenders party thereto, as the same may be further amended
and restated, replaced, supplemented or otherwise modified from time to time and/or, (d)
that certain Amendment Number Six Fee Letter, dated as of the Sixth Amendment Effective Date (the “Amendment Number
Six Fee Letter”), by and between Parent, Borrower and the Lenders party thereto, as the same may be further amended
and restated, replaced, supplemented or otherwise modified from time to time and/or (e)
that certain Amendment Number Seven Fee Letter, dated as of the Seventh Amendment Effective Date (the “Amendment
Number Seven Fee Letter”), by and between Parent, Borrower and the Lenders party thereto, as the same may be
further amended and restated, replaced, supplemented or otherwise modified from time to time and/or, as the
context may require.
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“Fifth Amendment Effective Date” means December 28, 2023.
“First Amendment Effective Date” means May 26, 2022.
“Flood Laws” means all Applicable Law relating to policies and procedures that address requirements placed on federally regulated lenders under the National Flood Insurance Reform Act of 1994 and other Applicable Law related thereto.
“Foreign Lender” means any Lender that is not a U.S. Person.
“Fourth Amendment Effective Date” means Fourth Amendment Effective Date as defined in Amendment Number Four.
“Free Trade Amount” has the meaning assigned to it in Section 14.1(f).
“Fuel Tax Credits” mean the tax credits, and the rights to claim such tax credits, available for producing, blending or using Renewable Product available under applicable law, including, but not limited to tax credits available under Sections 40A, 40B, 45Z and 6426 of Title 26 of the U.S. Code.
“Fund” means any Person (other than a natural Person), fund, commingled investment vehicle or managed account that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its activities.
“Funds
Flow Memorandum” shall mean (a) that certain funds flow memorandum to be dated the Closing Date and executed and delivered
by the Borrower to the Agent in connection with the application of Initial Term Loan proceeds on the Closing Date, which funds
flow memorandum shall be in form and substance reasonably satisfactory to the Initial Lenders, (b) that certain funds flow memorandum
to be dated the First Amendment Effective Date and delivered by the Borrower to the Agent in connection with the application of
Additional Term Loan proceeds on the First Amendment Effective Date, which funds flow memorandum shall be in form and substance
reasonably satisfactory to the Lenders, (c) that certain funds flow memorandum to be dated the Fifth Amendment Effective Date
and delivered by the Borrower to the Agent in connection with the application of 2023 Term Loan proceeds on the Fifth Amendment
Effective Date, which funds flow memorandum shall be in form and substance reasonably satisfactory to the Lenders and, (d) that certain funds flow memorandum to be dated the Sixth Amendment Effective Date and delivered by the Borrower
to the Agent in connection with the application of 2024 Term Loan proceeds on the Sixth2024
Borrowing Date, which funds flow memorandum shall be in form and substance reasonably satisfactory to the Lenders and (e) that
certain funds flow memorandum to be dated the Seventh Amendment Effective Date and delivered by
the Borrower to the Agent in
connection with the application of JS Loan proceeds on the Seventh
Amendment Funding Date, which funds flow memorandum shall be in form and substance reasonably satisfactory to the Lenders.
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“GAAP” means, as of any date of determination, generally accepted accounting principles as then in effect in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board.
“GDPR” means the European Union General Data Protection Regulation, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 of the European Parliament and the Council of the European Union and all regulations promulgated thereunder.
“Governmental Authority” means (a) any United States federal, state, county, municipal or foreign government, or political subdivision thereof, (b) any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality or public body, (c) any court or administrative tribunal or (d) with respect to any Person, any arbitration tribunal or other similar non-governmental authority to whose jurisdiction that Person has consented.
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness of the kind described in the definition thereof or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed or expressly undertaken by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
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“Guaranteed Obligations” has the meaning given to such term in Section 13.1.
“Guarantor Joinder Agreement” means the agreement substantially in the form of Exhibit B-2 hereto.
“Guarantors” has the meaning given to such term in the preamble.
“Guaranty” means, collectively, the Guarantee made by the Guarantors under Article 13 in favor of the Secured Parties, together with each other guaranty delivered pursuant to Section 6.11, in each case, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
“Hazardous Materials” means (a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or manmade, that is defined, designated, identified or classified as a hazardous waste, hazardous substance, hazardous material, pollutant, contaminant or toxic substance under, or for which liability or standards of care are imposed by, any Environmental Law; and (b) any petroleum, petroleum distillate or petroleum-derived substances or products, crude oil, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development or production of crude oil or natural gas, radon, radioactive materials or wastes, per- and polyfluoroalkyl substances, asbestos or asbestos-containing materials, lead or lead-containing materials, urea formaldehyde foam insulation, and polychlorinated biphenyls.
“Heartland Consent” means that certain Limited Consent, dated January 31, 2023, by and among the Borrower, the Agent and the Lenders party thereto.
“Heartland Election Notice” has the meaning ascribed to such term in clause (g) of the definition of “Permitted Indebtedness” contained herein.
“Heartland Indebtedness” has the meaning ascribed to such term in clause (g) of the definition of “Permitted Indebtedness” contained herein.
“Heartland Purchase Agreement” means that certain Purchase and Sale Agreement dated as of February 25, 2022, between Vertex Splitter Corporation and Tensile-Vertex Holdings LLC, as amended, restated, amended and restated, supplemented or otherwise modified after the date thereof.
“Heartland ROFR” has the meaning ascribed to such term in clause (g) of the definition of “Permitted Indebtedness” contained herein.
“Heartland ROFR Notice” has the meaning ascribed to such term in clause (g) of the definition of “Permitted Indebtedness” contained herein.
“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 arising under, owing pursuant to, or existing in respect of Hedging Agreements entered into with one or more of the Hedge Providers; provided that Hedge Obligations shall not include any obligations (including, without limitation, any Transaction Obligations and Related Xxxxxx (in each case, under and as defined under the Intermediation Facility (as in effect on the Closing Date)) under any Intermediation Facility Document, including, without limitation, by virtue of setoff or indemnification rights under the Intermediation Facility Documents.
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“Hedge Provider” means any Bank Product Provider that is a party to a Hedging Agreement with a Loan Party or otherwise provides Bank Products under clause (f) of the definition thereof.
“Hedging Agreement” means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement, in each case, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time; provided that, notwithstanding anything to the contrary, Intermediation Facility Documents shall not constitute a Hedging Agreement hereunder.
“Highbridge Lenders” means each of the Lenders party hereto that are managed by Highbridge Capital Management, LLC.
“Idemitsu” means Idemitsu Apollo Renewable Corporation, a Delaware corporation.
“Idemitsu
Intercreditor Agreement” means the Intercreditor
Agreementa subordination and intercreditor
agreement dated on or after the Seventh Amendment Effective Date,
by and between the Agent, Idemitsu, and the
Lenders, and acknowledged
by the Loan Parties, as required by
the Omnibus
Amendment.which shall be in
form and substance reasonably satisfactory to the Required Lenders and which shall contain a cap on the Idemitsu
obligations reasonably satisfactory to the Required Lenders, as the same may be amended, restated, amended and restated,
supplemented, modified, extended, renewed, replaced, refinanced, or restructured from time to time in accordance with its
terms.
“Idemitsu Note” means a secured promissory note dated on or after the Seventh Amendment Effective Date, by and between certain or all of the Loan Parties, and Idemitsu, which shall be in amount, form and substance reasonably satisfactory to the Required Lenders, as the same may be amended, restated, amended and restated, supplemented, modified, extended, renewed, replaced, refinanced, or restructured from time to time in accordance with the Idemitsu Intercreditor Agreement.
“Idemitsu Product Offtake Agreement” means that certain Master Offtake Agreement by and between Renewables AL as successor-in-interest to Vertex Refining Alabama LLC and Idemitsu Apollo Renewable Corp., dated as of February 4, 2022, as amended by that certain Amendment to Master Offtake Agreement dated as of May 30, 2023.
“Idemitsu Security Agreement” means that certain Security Agreement, dated as of May 24, 2024, by and between Renewables AL and Idemitsu.
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“Idemitsu Security Agreement #2” means a security agreement dated on or after the Seventh Amendment Effective Date, by and between certain or all of the Loan Parties and Idemitsu, securing obligations pursuant to the Idemitsu Note, which shall be in form and substance reasonably satisfactory to the Required Lenders, as the same may be amended, restated, amended and restated, supplemented, modified, extended, renewed, replaced, refinanced, or restructured from time to time in accordance with the Idemitsu Intercreditor Agreement.
“Incremental Amendment” has the assigned to it in Section 2.13(e)(i).
“Incremental Effective Date” has the assigned to it in Section 2.13(a).
“Incremental Facility” has the assigned to it in Section 2.13(a).
“Incremental Term Loan” has the assigned to it in Section 2.13(a).
“Incremental Term Loan Commitment” has the assigned to it in Section 2.13(a).
“Incremental Term Loan Lenders” has the assigned to it in Section 2.13(e).
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money (including interest whether charged at the Applicable Rate or otherwise) or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, including any earn-out obligations, (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business and not more than sixty (60) days past due), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (g) all Contingent Obligations of such Person (not in duplication of any other clause of this definition), (h) all Capital Lease Obligations and Synthetic Lease Obligations of such Person, (i) all obligations of such Person as an account party in respect of letters of credit, (j) all obligations of such Person in respect of bankers’ acceptances, (k) obligations in respect of Disqualified Equity Interests, and (l) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, including any Hedging Agreement, in each case, whether entered into for hedging or speculative purposes or otherwise. The amount of any Indebtedness of any Person in respect of a Hedging Agreement shall be the amount determined in respect thereof as of the end of the then most recently ended calendar quarter of such Person, based on the assumption that such Hedging Agreement had terminated at the end of such calendar quarter. In making such determination, if any agreement relating to such Hedging Agreement provides for the netting of amounts payable by and to such Person thereunder or if any such agreement provides for the simultaneous payment of amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount so determined, in each case to the extent that such agreement is legally enforceable in Insolvency Proceedings against the applicable counterparty thereof. The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or joint venture; provided that Indebtedness will not be deemed to include obligations incurred in advance of, and the proceeds of which are to be applied in connection with, the consummation of a transaction (including any proceeds held in an escrow, trust, collateral or similar account or arrangement for a period of no longer than 30 days (or such longer period to which the Required Lenders may reasonably agree).
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“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 the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Independent Amount” means the Independent Amount as defined in the Independent Amount Letter (as defined in the A&R Intercreditor Agreement) or the Independent Amount as defined in the Renewables Independent Amount Letter (as defined in the A&R Intercreditor Agreement).
“Initial Lender” means each of the Whitebox Lenders, the Highbridge Lenders, the BlackRock Lenders, Xxxxxxxx Energy Capital IV, LP, CrowdOut Credit Opportunities Fund LLC, and CrowdOut Capital LLC.
“Initial Term Loan” means the term loan funded by the Lenders to the Borrower on the Closing Date pursuant to Section 2.1(a) in an aggregate amount equal to the Initial Term Loan Commitment.
“Initial Term Loan Commitment” means as to each Initial Lender, its obligation to make the Initial Term Loans to the Borrower, on the Closing Date, in the amount opposite such Lender’s name on Schedule 2.1(a) in an aggregate amount not to exceed $125,000,000. For the avoidance of doubt, as of the Fifth Amendment Effective Date, the Initial Term Loan Commitment equals $0.
“Initial Warrants” means the warrants to purchase shares of common stock of Parent issued by Parent to the Initial Lenders (or at the Initial Lender’s option, an Affiliate or Approved Fund of such Initial Lender) on the Closing Date pursuant to Section 2.11, which warrants are governed by and subject to the terms of the Warrant Agreement.
“Insolvency Proceeding” means any proceeding commenced by or against any Person or entity under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law (domestic or foreign), including assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief.
“Insolvent” means, with respect to any Person as of any date of determination, that (a) the sum of the debt (including contingent liabilities existing as of the Closing Date) of such Person and its subsidiaries (on a consolidated basis) exceeds the present fair saleable value of the present assets of such Person and its subsidiaries (on a consolidated basis), (b) the capital of such Person and its subsidiaries (on a consolidated basis) is not unreasonably small in relation to its business as of such date or as contemplated as of such date, (c) such Person and its subsidiaries have incurred, or reasonably believe that they will incur, debts beyond their ability to pay such debts as they mature or, in the case of contingent liabilities, otherwise become payable, or (d) such Person is not “solvent” or is “insolvent”, as applicable within the meaning given those terms and similar terms under Applicable Law relating to fraudulent transfers and conveyances.
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“Intellectual Property” means all of a Person’s right, title, and interest in and to the following: Copyrights, Trademarks and Patents (including registrations and applications therefor prior to granting, and whether or not filed, recorded or issued); domain names; all trade secrets and related rights, including without limitation rights to unpatented inventions, know-how and manuals; all design rights; claims for damages by way of past, present and future infringement of any of the rights included above; all amendments, renewals and extensions of any Copyrights, Trademarks or Patents; all licenses or other rights to use any of the foregoing and all license fees and royalties arising from such use; and all proceeds and products of the foregoing.
“Intellectual Property Security Agreement” means the agreement substantially in the form of Exhibit F hereto, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
“Intercompany Subordination Agreement” means that certain Intercompany Subordination Agreement, dated as of April 1, 2022, executed by the Parent, the Borrower, and the Subsidiary Guarantors in favor of the Agent, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
“Intercreditor Agreement” means the A&R Intercreditor Agreement or any Market Intercreditor Agreement or other intercreditor agreement entered into from time to time by the Loan Parties, Agent and other secured parties party thereto, in each case as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
“Intercreditor Provisions” has the meaning assigned to it in Section 8.16.
“Intermediation Facility” means the Refining Intermediation Facility, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time, subject to an Intercreditor Agreement.
“Intermediation Facility Agent” means the Intermediation Facility Secured Party (as defined therein), any Intermediators and/or any agent or representative acting for the Intermediators under an Intercreditor Agreement.
“Intermediation Facility Documents” means the agreements documenting the Intermediation Facility between a Loan Party, the Intermediators and any Intermediation Facility Agent, in each case, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
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“Intermediation Facility Priority Collateral” means the Intermediation Facility Priority Collateral, as defined in the A&R Intercreditor Agreement, as the context requires.
“Intermediation Facility Secured Parties” means any Intermediation Facility Agent and all other holders, from time to time, of any Intermediation Facility Obligations (as defined in the A&R Intercreditor Agreement) (each, an “Intermediation Facility Secured Party”).
“Intermediators” means Macquarie Energy North America Trading Inc.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“Inventory” means “inventory” as defined in the Code, including work in process and finished products intended for sale or lease or to be furnished under a contract of service, of every kind and description now or at any time hereafter owned by or in the custody or possession, actual or constructive, of any Loan Party, including such inventory as is temporarily out of its custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above, and each Loan Party’s Books relating to any of the foregoing.
“Investment” means any beneficial equity ownership in any Person (including stock, partnership interest or other securities), any purchase or other acquisition of debt or other securities of any Person, any loan, advance or capital contribution to, or Guarantee or assumption of debt of, any Person (including any partnership or joint venture interest in any Person), or the purchase or other acquisition (in one transaction or series of transactions) of all or substantially all of the property and assets or business of any Person or assets constituting a business unit, line of business or division of any Person.
“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Loan Party .
“IRS” means the United States Internal Revenue Service.
“JS Commitment” means as to the JS Lender, its obligation to make JS Loans to the Borrower, on the Seventh Amendment Funding Date, in the amount opposite JS Lender’s name on Schedule 2.1(a). For the avoidance of doubt, as of the Seventh Amendment Effective Date, the aggregate amount of the JS Commitment is $20,000,000.
“JS Exit Fee” means (1) with respect to a partial payment, repayment or redemption of the outstanding JS Loans, the product of (x) the positive difference (if any), as of such date, of (i) the JS Commitments as of the Seventh Amendment Effective Date (and without giving effect to any subsequent repayments or reductions in such JS Commitment amount) plus any JS PIK Fee Amount multiplied by 20.00% less (ii) the sum of (A) the aggregate amount of interest paid in cash to the JS Lender prior to such date on such principal amount being paid, repaid or redeemed (excluding, for the avoidance of doubt, any interest accrued at the additional 2.00% per annum under any applicable Default Rate), plus (B) the amount of interest paid in cash to the JS Lender to be paid on such date on such principal amount being paid, repaid or redeemed (excluding, for the avoidance of doubt, any interest accrued at the additional 2.00% per annum under any applicable Default Rate) multiplied by (y) (i) the principal amount of JS Loans being partially repaid, prepaid or redeemed in cash on such date divided by (ii) the JS Commitments as of the Seventh Amendment Effective Date (and without giving effect to any subsequent repayments or reductions in such JS Commitment amount) plus any JS PIK Fee Amount and (2) with respect to a payment, repayment or redemption of all outstanding JS Loans in full, the positive difference (if any), as of such date, of (i) the JS Commitments as of the Seventh Amendment Effective Date (and without giving effect to any subsequent repayments or reductions in such JS Commitment amount) plus any JS PIK Fee Amount multiplied by 20.00% less (ii) the sum of (A) the aggregate amount of interest paid in cash to the JS Lender prior to the date of such prepayment on such principal amount being paid, repaid or redeemed (excluding, for the avoidance of doubt, any interest accrued at the additional 2.00% per annum under any applicable Default Rate), plus (B) the amount of interest paid in cash to the JS Lender to be paid on the date of such prepayment on such principal amount being paid, repaid or redeemed (excluding, for the avoidance of doubt, any interest accrued at the additional 2.00% per annum under any applicable Default Rate), plus (C) the amount of JS Exit Fee paid to the JS Lender prior to such date.
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“JS Lender” means Xxxxxxxx Xxxxxxxxx, a natural Person, who has a JS Commitment or who holds JS Loans.
“JS Loan” means the term loan funded by the JS Lender to the Borrower on the Seventh Amendment Funding Date pursuant to Section 2.1(e) in an aggregate amount equal to the JS Commitment.
“JS PIK Fee Amount” has the meaning given to such term in the Amendment Number Seven Fee Letter.
“July PIK Fee Amounts” has the meaning given to such term in the Amendment Number Seven Fee Letter.
“June 2024 Commitment” shall mean the 2024 Term Loan Commitments of the 2024 Term Loan Lenders as of the Sixth Amendment Effective Date plus any June PIK Fee Amount (and without giving effect to any subsequent repayments or reductions in such 2024 Term Loan Commitment amount).
“June 28 Payment” has the meaning set forth in Amendment Number Six.
“June 28
PaymentPIK Fee Amounts” has
the meaning set forth ingiven
to such term in the Amendment Number Six Fee
Letter.
“Knowingly” has a correlative meaning of undertaking an action with Knowledge.
“Knowledge” means, with respect to a Person, the knowledge of the individuals of such Person, including a Responsible Officer, who have the responsibility for any day-to-day decision making, or legal, operational, or financial affairs of such Person, which knowledge shall include any and all facts and other information of such Person actually knew or reasonably should have known in accordance with all applicable industry standards and commercially reasonable prudence and diligence.
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“Laws” means, collectively, all international, foreign, federal, state, provincial, territorial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lender
Expenses” means all reasonable and reasonably documented out-of-pocket costs or expenses (including reasonable
attorneys’ fees and expenses), incurred by Agent or any Lender in connection with the preparation, negotiation,
administration, any Default or Events of Default, and enforcement of the Loan Documents (including without limitation the
reasonable and documented (1) legal fees and expenses
of (i) Xxxxxx Xxxxxx XLP, counsel for the Lender group (other
than the JS Lender) (and one local counsel in each applicable jurisdiction, for the Lenders as a group and the
Agent), (ii) Xxxxxxx & Xxxxxxx LLP, counsel to the Agent, and (iii)
Xxxxxxxx Xxxxxx XLP, as special counsel for the Blackrock Lenders with scope of role and limitations as agreed by Blackrock
and the Borrower) and (iv) Xxxxxx
& Xxxxxxx LLP, as special counsel for the JS Lender with scope of role and limitations as agreed by JS Lender and the
Borrower; provided that such expenses for the JS Lender shall not exceed $100,000 per month after the Seventh Amendment
Effective Date and (2) reasonable fees, expenses and disbursements of an appraiser, investment banker, consultant and/or
financial advisor employed or retained by the Secured Parties or their counsel for the Lenders as a group limited to one of
each category), including any amendments, modifications, consents and waiver to and/or under any and all Loan
Documents; any public record searches conducted by or at the request of Agent from time to time, including without
limitation, title investigations, public records searches, pending litigation and tax lien searches and searches for
applicable corporate, limited liability, partnership and related records; reasonable Collateral audit fees incurred by Agent
or any Lender; and Agent’s and any Lender’s reasonable costs
and expenses (including but not limited to attorneys’ fees and expenses)
incurred before, during and/or after an Insolvency Proceeding (i) protecting, storing, insuring, handling, maintaining,
auditing, examining, valuing or selling any Collateral; or (ii) maintaining, amending, enforcing, collecting, performing
(including any workout or restructuring) or defending the Loan Documents; or incurred in any other matter or proceeding
relating to the Loan Documents (including in all cases, without limit, court costs, settlement
costs, legal expenses and reasonable attorneys’ fees and expenses, whether or not suit is instituted, and,
if suit is instituted, whether at trial court level, appellate court level, in a bankruptcy, probate or administrative
proceeding or otherwise).
“Lender Group” has the meaning assigned to it in Section 14.1(b).
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“Lien” means any pledge, bailment, lease, mortgage, deed of trust (or similar instrument), hypothecation, conditional sales and title retention agreement, charge, claim, encumbrance, preference, priority or other lien (statutory or otherwise) in favor of any Person.
“Loan and Security Agreement” means this Agreement.
“Loan Documents” means, collectively, this Agreement, Amendment Number One, Amendment Number Two, Amendment Number Three, Amendment Number Four, Amendment Number Five, Amendment Number Six, Amendment Number Seven, the Heartland Consent, each Note, the Warrants, the Warrant Agreement, the Additional Warrant Agreement, the 2023 Warrant Agreement, the 2024 Warrant Agreement, the Additional 2024 Warrant Agreement, the Registration Rights Agreement, the 2023 Registration Rights Agreement, the 2024 Registration Rights Agreement, the Additional 2024 Registration Rights Agreement, the Agent Fee Letter, the Fee Letter, the Commitment Letter, any Borrower Joinder Agreement, any Guarantor Joinder Agreement, each Notice of Borrowing, the Collateral Documents, any Subordination Agreement and all other documents, instruments and agreements executed or delivered by any Loan Party to or for the benefit of Agent and Lenders in connection with this Agreement, all as amended or extended from time to time, including for the avoidance of doubt, any other agreements, consents or waivers entered into which are designated therein as a “Loan Document”.
“Loan Party” means the Borrower and each Guarantor.
“Low Carbon Fuel Standard” or “LCFS” means the regulations, orders, decrees and standards issued by CARB or other applicable governmental authority implementing or otherwise applicable to the Low Carbon Fuel Standard set forth in the California Code of Regulations at Title 17, §§ 95480 et seq., and each successor regulation, as may be subsequently amended, supplemented or restated from time to time.
“Market Intercreditor Agreement” means any intercreditor agreement in form and substance reasonably acceptable to the Required Lenders, the Borrower and the other secured parties party thereto establishing, among other things, the relative Lien and payment priorities of the Secured Obligations vis-à-vis other Permitted Indebtedness (i.e., whether that the holder of such Permitted Lien will have a first priority lien in such Collateral), and terms relating to the control of remedies; provided that in no event shall the A&R Intercreditor Agreement be considered precedent for any Market Intercreditor Agreement.
“Material Adverse Effect” means a material adverse effect on (i) the business, operations, assets, liabilities, prospects or condition (financial or otherwise) of Parent and the other Loan Parties taken as a whole, (ii) the ability of Borrower to repay the Secured Obligations or any Loan Party to otherwise perform its obligations under the Loan Documents, or (iii) the validity, perfection or priority of, or any impairment to, Agent’s security interests in the Collateral or Agent’s right to enforce any of its rights or remedies with respect to the Secured Obligations.
“Material Contracts” means any contract or agreement (whether written or oral) to which any Loan Party is a party where the aggregate consideration payable to or by such Loan Party pursuant to the terms of such contract or agreement exceeds 10% of such Loan Party’s expenditures for contracts or agreements of such type, with the types of “expenditures” being (A) Revenue, (B) costs and (C) operating expenditures, as amended, restated, supplemented or otherwise modified from time to time.
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“Xxxxxxxx Documents” means, collectively, as amended, restated, supplemented or otherwise modified from time to time, (i) the Hydrogen and Steam Supply Agreement by and between Borrower and Xxxxxxxx Tri-Gas, Inc., as successor in interest to Linde Gas LLC, dated as of June 11, 2022; (ii) the A&R Hydrogen and Steam Supply Agreement by and between Vertex Refining Alabama LLC, as successor in interest to Shell Chemical LP, and Xxxxxxxx Tri-Gas, Inc., as successor in interest to Linde Gas LLC, dated as of January 12, 2006 and amended as of March 31, 2020; and (iii) the Ground Lease Agreement by and between Vertex Refining Alabama LLC as successor in interest to Linde Gas LLC and Xxxxxxxx Tri-Gas, Inc. as successor in interest to Shell Chemical LP, dated as of January 12, 2006.
“Matheson Project” means the Hydrogen and Steam Supply construction project contemplated by the Xxxxxxxx Documents.
“Maturity Date” means April 1, 2025; provided that if such day is not a Business Day, the Maturity Date shall be the Business Day immediately succeeding such day.
“Mechanical Completion” has the meaning set forth in the Construction Agreement (as in effect on the Closing Date).
“Mobile Refinery” means that certain refinery and related assets in Mobile, Alabama to be purchased pursuant to the Mobile Refinery Acquisition Agreement.
“Mobile Refinery Acquisition” means the consummation of the purchase of the Mobile Refinery from Shell on terms satisfactory to the Initial Lenders pursuant to the terms of the Mobile Refinery Acquisition Agreement.
“Mobile Refinery Acquisition Agreement” means that certain Sale and Purchase Agreement by and between Borrower (as successor in interest to Vertex Energy Operating, LLC, a Texas limited liability company), as the Buyer, and Equilon Enterprises LLC d/b/a Shell Oil Products US, Shell Chemical LP, and Shell Oil Company, as Sellers.
“Mortgage” means a mortgage, deed of trust, trust deeds, or deed to secure debt, in form and substance reasonably satisfactory to the Required Lenders, made by a Loan Party in favor of Agent for the benefit of Agents and the Lenders, securing the Secured Obligations and delivered to Agent, in each case, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.
“Multiemployer Plan” means any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) to which a Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding six years has made or been obligated to make contributions.
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“Myrtle Grove Purchase Agreement” means that certain Purchase and Sale Agreement dated as of February 25, 2022, between Vertex Splitter Corporation, Tensile – Vertex Holdings LLC and Tensile-Myrtle Grove Acquisition Corporation, as amended, restated, amended and restated, supplemented or otherwise modified from time to time following the date thereof.
“Negotiable Collateral” means all Collateral of which any Loan Party is a beneficiary, including, letters of credit, notes, drafts, instruments, securities, documents of title, and chattel paper, and such Loan Party’s Books relating to any of the foregoing.
“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by Parent or any Subsidiary in respect of any Transfer, Equity Issuance, or Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees and sales commissions), (b) taxes paid or payable as a result thereof and (c) in the case of any Transfer or any Involuntary Disposition, the amount necessary to retire any Indebtedness permitted to be incurred hereunder and secured by a Permitted Lien (ranking senior to any Lien of the Agent) on the related property; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by Parent or any Subsidiary in any Transfer, Equity Issuance, or Involuntary Disposition.
“New Facility” has the meaning specified therefor in Section 6.14(c).
“Non-Consenting Lender” has the meaning specified therefor in Section 14.15.
“Non-LSA Xxxxxx” has the meaning specified therefor in clause (m) of “Permitted Liens”.
“Note” means a secured promissory note in favor of a Lender in substantially the form of Exhibit E.
“Notice of Borrowing” means a notice of borrowing of a Term Loan pursuant to the terms of this Agreement in substantially the form of Exhibit D.
“NS Disposition” means the Transfer of certain real property and improvements thereon located at or near Saraland, Mobile County, Alabama by the Borrower to Norfolk Southern Railway Company pursuant to a purchase and sale agreement substantially in the form delivered to the Agent and the Lenders prior to the Fifth Amendment Effective Date.
“Obligations” means all debt, principal, interest, fees, charges, indemnities, Lender Expenses, June PIK Fee Amounts, July PIK Fee Amounts, JS PIK Fee Amounts, Exit Fee, Exit Fee 2024, JS Exit Fee, Prepayment Premium and other amounts owing by Borrower or any other Loan Party to Agent or a Lender of any kind and description whether arising under or pursuant to or evidenced by the Loan Documents, regardless of how such obligation arises or by what Loan Document it may be evidenced, whether or not for the payment of money, whether direct or indirect, matured or unmatured, absolute or contingent, primary or secondary, liquidated or unliquidated, disputed or undisputed, joint, joint and several, legal, equitable, secured or unsecured, due or to become due, now existing or hereafter arising, including the principal and interest due with respect to the Term Loans and any June PIK Fee Amounts, July PIK Fee Amounts and any JS PIK Fee Amount, as applicable, and further including all Lender’s Expenses that Borrower or any other Loan Party is required to pay or reimburse by the Loan Documents, by law, or otherwise, whether or not any claim for such Indebtedness, liability or obligation is discharged, stayed or otherwise affected by any proceeding under any Debtor Relief Law.
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“OFAC” means Office of Foreign Assets Control of the U.S. Treasury Department.
“Offer” has the meaning assigned to it in Section 14.1(f).
“OID” means original issue discount.
“Omnibus Amendment” means that certain Omnibus Amendment and Waiver, dated as of June 3, 2024, by and among Parent, Borrower, the other Subsidiary Guarantors, Agent and the Lenders.
“Ordinary Course Acquisition” means an acquisition (whether in a single transaction or related series of transactions) in the ordinary course of Property (including goods, materials, supplies, inventory, equipment and other personal Property) consumable or useful in the operation of the business of the Loan Parties (taken as a whole) not to exceed an aggregate amount equal to $10,000,000 per calendar year; provided that in no event shall an event that could otherwise be considered an Approved Acquisition under clauses (a), (c) or (d) of the definition thereof be considered an Ordinary Course Acquisition.
“Organization Documents” means, (a) with respect to any corporation, the charter or certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction), (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient 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 Term Loan or Loan Document).
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“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Parent” has the meaning given to such term in preamble to this Agreement.
“Participant” has the meaning specified in Section 14.1(e).
“Participant Register” has the meaning specified in Section 14.1(e).
“Patents” means all issued patents, patent applications and like protections including without limitation rights and privileges arising under Applicable Law with respect thereto (in the United States), inventions, improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same.
“Payment Intangible” means any “payment intangible” as defined in the Code.
“Payment Recipient” has the meaning assigned to it in Section 12.11(a).
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
“Pension Plan” means any “employee benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, which is subject to Title IV of ERISA or Sections 412 of the Internal Revenue Code or Section 302 of ERISA, and which is or was, within the preceding six years, maintained, or required to be contributed to, a Loan Party or any ERISA Affiliate.
“Permitted Equity Issuance” means (a) any Equity Issuance pursuant to any employee, director or consultant option program, benefit plan or compensation program or agreement, (b) any Equity Issuance by a Loan Party to Parent, the Borrower or another Loan Party, (c) any Equity Issuance related to the Warrants, (d) any Equity Issuance to fund all or a portion of the purchase price of any (i) Approved Acquisition, (ii) any Permitted Investment, or (iii) any capital expenditures permitted hereunder, (e) any Equity Issuance pursuant to the Existing Convertible Notes, and (f) any Specified Equity Issuance.
“Permitted Indebtedness” means the following:
(a) Indebtedness of any Loan Party in favor of Agent or a Lender arising under this Agreement or any other Loan Document;
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(b) Indebtedness existing on the Closing Date and disclosed in Section 8 of the Disclosure Letter;
(c) Indebtedness consisting of: (i) capital leases; (ii) Permitted Investments allowed pursuant to clause (f) of the definition of Permitted Investments; and (iii) purchase money obligations for fixed or capital assets within the limitations set forth in clause (c) of the defined term “Permitted Liens,” provided such Indebtedness does not exceed the lesser of the cost or fair market value of the equipment and software financed with such Indebtedness; provided further, that the annual payments with respect to Indebtedness permitted by this clause (c) shall not exceed $9,000,000 per year and further provided that, if requested by the Required Lenders, the Loan Parties shall use commercially reasonable efforts to cause the holders of such Indebtedness to enter into a Collateral Access Agreement on terms reasonably satisfactory to the Required Lenders; provided that no Loan Party shall be deemed in breach of this provision if the applicable holder of such Indebtedness does not deliver such Collateral Access Agreement;
(d) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is promptly extinguished;
(e) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(f) to the extent constituting Indebtedness, unsecured guarantees by Parent or Vertex Operating in favor of a credit provider to VRM-LA in respect of obligations of VRM-LA in an amount not to exceed $5,000,000 in the aggregate;
(g) to the extent constituting Indebtedness, the obligations under the Acquisition Side Letter and any Indebtedness necessary to fund the Loan Parties obligations under subclause (a) of Section 1A thereof (such Indebtedness, the “Heartland Indebtedness”), provided that (x) (i) the applicable Loan Party shall provide written notice (the “Heartland ROFR Notice”) to the Lenders offering the Lenders a right of first refusal (the “Heartland ROFR”) to provide the Heartland Indebtedness (which, for the avoidance of doubt, shall not impose any requirement on any such Lender to provide (or commit to provide) the Heartland Indebtedness) through the establishment of one or more term loan commitments under this Agreement on terms substantially similar to the Term Loans or as otherwise mutually agreed, (ii) the Lenders shall have 15 days following receipt of such notice to accept or decline the Heartland ROFR by notice to the applicable Loan Party (the “Heartland Election Notice”); provided, however, if the Lenders do not respond in such 15 day period following the Heartland ROFR Notice, it shall be deemed that the Lenders have declined such Heartland ROFR, (iii) (x) if the Lenders accept the Heartland ROFR, the Lenders and Loan Parties shall use commercially reasonable efforts to close and fund the Heartland Indebtedness within 20 days of the Heartland Election Notice or (y) if the Lenders decline or are deemed to have declined the Heartland ROFR, then such Loan Party shall be permitted to engage alternate financing sources in connection with the Heartland Indebtedness; provided that any such Indebtedness be on terms reasonably satisfactory to the Required Lenders and, if intended to be secured by Collateral, be subject to a Market Intercreditor Agreement.
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For the avoidance of doubt, as of the First Amendment Effective Date, any and all obligations of the Loan Parties under this clause (g) shall be deemed to have been satisfied in all respects, in accordance with the terms hereof and no further Indebtedness shall be permitted to be incurred under this clause (g).
(h) Indebtedness of any Loan Party arising from Bank Products provided by Bank Product Providers; provided that in the case of Hedge Obligations (i) such obligations are (or were) entered into by such Person in the ordinary course of business and not for purposes of speculation and (ii) such Hedging Agreement does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(i) Indebtedness consisting of the financing of insurance premiums contemplated by clause (i) of the definition of “Permitted Liens”;
(j) unsecured Indebtedness to trade creditors in the ordinary course of business which is more than 90 days past due (unless such Indebtedness is being contested in good faith by appropriate proceedings and for which the Loan Parties have set aside on their Books adequate reserves in accordance with GAAP) not to exceed at any time outstanding more than $250,000 (for clarity all unsecured Indebtedness to trade creditors in the ordinary course of business which is less than sixty (60) days past due is permitted);
(k) other obligations of any kind not to exceed at any time outstanding more than $1,000,000;
(l) Indebtedness of the Loan Parties with respect to performance bonds, surety bonds, appeal bonds or customs bonds required in the ordinary course of business requiring no more than $3,000,000 per year in premiums and/or penalty payments;
(m) intercompany Indebtedness by and among Parent and its Subsidiaries (subject to clauses (d) and (j) of the definition of “Permitted Investments”);
(n) to the extent constituting Indebtedness, any Specified Equity Issuance;
(o) purchase price adjustments, indemnity payments and earn-out obligations in connection with any Approved Acquisition (to the extent not in excess of the consideration limitations set forth in the definition thereof);
(p) Subordinated Debt, so long as such Subordinated Debt is on then current market terms (as reasonably determined by the Borrower in consultation with the Required Lenders);
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(q) advances or deposits received in the ordinary course of business from customers or vendors;
(r) [reserved];
(s) solely to the extent constituting Indebtedness, obligations, including deferred payment obligations, of and incurred by any Loan Party in favor of an Intermediation Facility Secured Party under any Intermediation Facility (including the Refining Intermediation Facility), subject to the terms of an Intercreditor Agreement and, notwithstanding Section 7.16(b), any refinancings, refundings, renewals or extensions thereof; provided that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination, standstill and related terms (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate; provided, further, that (i) all documentation therefor shall be in form and substance reasonably acceptable to the Required Lenders and (ii) the parties shall have entered into, and such Indebtedness shall be subject to a Market Intercreditor Agreement;
(t)
guarantees in respect of any Permitted
Indebtedness; and
(u) solely to the extent permitted under Section 7.16(b), extensions, refinancings, modifications, amendments and restatements
of Indebtedness incurred pursuant to clauses (b) and (c) above (other than the Existing Convertible Notes), provided
that (i) the principal amount thereof is not increased or the terms thereof are not modified to impose more burdensome terms upon
any Loan Party or other applicable Loan Party, as the case may be, (ii) the maturity and Weighted Average Life to Maturity with
respect to any Indebtedness incurred pursuant to clauses (b) and (c) above in this definition is not shortened in
connection with any such extensions, refinancings, modifications, amendments and restatements, (iii) such Indebtedness shall have
the same obligors as the Indebtedness so extended, refinanced, modified, amended or restated, (iv) to the extent unsecured, any
such extended, refinanced, modified, amended or restated Indebtedness shall remain unsecured, and (v) with respect to any such
extensions, refinancings, modifications, amendments and restatements of the Existing Convertible Notes, such Indebtedness shall
be on then current market terms (as reasonably determined by the Borrower in consultation with the Agent and the Required Lenders).;
and
(v) to the extent constituting Indebtedness, the obligations under the Idemitsu Security Agreement #2, and the Indebtedness arising under the Idemitsu Note.
“Permitted Investment” means:
(a) Investments existing on the Closing Date disclosed in Section 1 of the Disclosure Letter;
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(b) Investments constituting cash and Cash Equivalents, provided such cash and Cash Equivalents are in accounts which are subject to a Control Agreement in favor of Agent to the extent required under Section 7.11 of this Agreement;
(c) Investments accepted in connection with Permitted Transfers;
(d) Investments among Loan Parties;
(e) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of the Loan Parties’ business;
(f) Investments to the extent that payment for such Investments is made solely with Qualified Equity Interests of Parent or the proceeds from the issuance thereof; provided that Investments in Subsidiaries that have not signed a Borrower Joinder Agreement or Guarantor Agreement shall not exceed $200,000 in the aggregate during the term of this Agreement;
(g) Investments consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business in an aggregate amount not to exceed $100,000 per fiscal year, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of any Loan Party pursuant to employee stock purchase plans or agreements approved by Parent’s Board of Directors in an aggregate amount not to exceed $250,000 per fiscal year;
(h) Approved Acquisitions; provided that if any Person is acquired or becomes a Subsidiary pursuant to such transactions, such Person shall comply with Sections 6.11 and 6.12 of this Agreement;
(i) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(j) so long as no Default or Event of Default has occurred and is continuing or would result from such Investment, Investments in Subsidiaries that have not signed a Borrower Joinder Agreement or Guarantor Agreement not to exceed $200,000 in the aggregate during the term of this Agreement;
(k) Investments in accounts at financial institutions; provided, that such accounts are permitted pursuant to Section 7.11 and Agent has a perfected security interest in the amounts held in such deposit accounts as required pursuant to Section 7.11;
(l) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss; provided that this clause shall not apply to Investments of Parent in any Subsidiary;
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(m) Investments held by any Person as of the date such Person is acquired in connection with an Approved Acquisition; provided that such Investments were not made, in any case, by such Person in connection with, or in contemplation of, such Approved Acquisition;
(n) deposits made to secure the performance of leases, licenses or contracts in the ordinary course of business, and other deposits made in connection with the incurrence of Permitted Liens;
(o) Investments by any Loan Party to the extent constituting Permitted Indebtedness hereunder (for the avoidance of doubt, other than clause (m) thereof);
(p) [reserved]; and
(q) Investments not otherwise expressly permitted hereunder in an amount not to exceed $250,000 per fiscal year.
“Permitted Liens” means the following:
(a) Liens existing on the Closing Date and disclosed in Section 8 of the Disclosure Letter;
(b) Liens for taxes, fees, assessments or other governmental charges or levies that are delinquent and for which the applicable Loan Party maintains adequate reserves;
(c) Liens on fixed or capital assets or on Real Property of any Loan Party which secure Indebtedness permitted under clause (c) of the definition of Permitted Indebtedness so long as (i) such Liens and the Indebtedness secured thereby are incurred prior to or within ninety (90) days after such acquisition, (ii) the Indebtedness secured thereby does not exceed the cost of acquisition of the applicable assets, and (iii) such Liens shall attach only to the assets or Real Property acquired, improved or refinanced with such Indebtedness and shall not extend to any other property or assets of the Loan Parties;
(d) Liens incurred in connection with the extension, renewal or refinancing of the indebtedness secured by Liens of the type described in clauses (a) through (c) above, provided that any extension, renewal or replacement Lien (i) shall be limited to the property encumbered by the existing Lien, (ii) shall not exceed the principal amount and interest rate of the indebtedness being extended, renewed or refinanced and (iii) the term for payment, the maturity and Weighted Average Life to Maturity with respect to items listed in clause (a) above in this definition shall not decrease in connection with any such extension, renewal or refinancing;
(e) Non-exclusive licenses of Intellectual Property granted to third parties in the ordinary course of business and not materially interfering with the business of the Parent or any of its Subsidiaries;
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(f) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 8.4 or Section 8.6;
(g) Liens in favor of other financial institutions arising in connection with Loan Parties’ deposit accounts or securities accounts held at such institutions to secure standard fees for services charged by, but not financing made available by such institutions; provided that Agent, for itself and the benefit of Lenders has a perfected security interest in the amounts held in such accounts to the extent required under Section 7.11 of this Agreement;
(h) Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of customs duties in connection with the importation of goods;
(i) Liens on insurance proceeds in favor of insurance companies granted solely as security for financed premiums;
(j) Liens on deposits securing obligations with suppliers entered into in the ordinary course of business and deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(k) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business; provided that such Liens attach only to Inventory and secure only amounts not yet due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same;
(l) Liens in favor of any Intermediation Facility Secured Parties arising under the Refining Intermediation Facility Documents to secure Permitted Indebtedness under clause (s) of the definition thereof subject to the terms of the A&R Intercreditor Agreement;
(m) Liens in favor of a Bank Product Provider securing Bank Product Obligations constituting Permitted Indebtedness under clause (h) of the definition thereof but not constituting Secured Obligations hereunder (any such obligations, “Non-LSA Xxxxxx”); provided that the value of collateral securing such Bank Product Obligations shall not exceed $7,500,000 at any time outstanding less any cash collateral held in Excluded Accounts under clause (c) of the definition thereof; provided further that any such Liens are subject to a Market Intercreditor Agreement;
(n) Liens arising from the filing of any financing statement on operating leases, to the extent such operating leases are permitted under this Agreement;
(o) Liens to secure workers’ compensation, employment insurance, old-age pensions, social security and other like obligations incurred in the ordinary course of business;
(p) Liens on property of a Person existing at the time such Person is acquired in connection with an Approved Acquisition; provided that (i) such Liens were not created in contemplation of such Approved Acquisition, (ii) such Liens do not extend to any assets other than those of such Person, and (iii) the applicable Indebtedness or obligation secured by such Lien is not prohibited under this Agreement;
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(q) Liens on any xxxxxxx money deposits required in connection with an Approved Acquisition;
(r) the replacement, extension or renewal of any Lien permitted by clauses (a) through (q) above (but without duplication thereof) upon or in the same property theretofore subject thereto or the replacement, extension or renewal (without increase in the amount or change in any direct or contingent obligor) of the Indebtedness secured thereby under clause (u) of Permitted Indebtedness;
(s) Xxxxx granted in favor of the Agent to secure the Secured Obligations;
(t) Liens
granted (i) under the Idemitsu Security Agreement #2 or the Idemitsu
Note, as applicable, in each case, subject to the Idemitsu Intercreditor Agreement, and
(ii) with respect to the Refining
Intermediation Facility, subject to the A&R Intercreditor
Agreement and (iii) with respect to Indebtedness
permitted under clause (m) of Permitted Indebtedness, subject to the Intercompany Subordination Agreement;
(u) Leases and rights of usage granted to Xxxxxxxx Tri-Gas, Inc. pursuant to the Xxxxxxxx Documents; and
(v) other Liens (not otherwise enumerated in this defined term) securing Indebtedness not exceeding $1,000,000 in the aggregate outstanding at any time.
“Permitted Tax Distributions” means:
(a) for any taxable period in which Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), distributions by a Loan Party to such direct or indirect parent of such Loan Party (in each case, taking into account indirect ownership through partnerships) to pay federal, foreign, state and local income Taxes of such Tax Group that are attributable to the taxable income of Parent and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that Parent and the Subsidiaries would have been required to pay as a stand-alone Tax Group, reduced by any portion of such income Taxes directly paid by Parent or any of its Subsidiaries; or
(b) with respect to any taxable year (or portion thereof) with respect to which Parent is a partnership or disregarded entity for U.S. federal, state and/or local income tax purposes, distributions to Parent’s direct owner(s) in an aggregate amount equal to the product of (i) the net taxable income of Parent and its Subsidiaries for such taxable year (or portion thereof), reduced by any cumulative net taxable loss with respect to all prior taxable years (or portions thereof) beginning after the Closing Date (determined as if all such periods were one period) to the extent such cumulative net taxable loss is of a timing perspective (based on applicable carryforward rules) and character (ordinary or capital) that would permit such loss to be deducted against the income of the taxable year in question (or portion thereof) and (ii) the highest combined marginal federal and applicable state and/or local income tax rate (taking into account, to the extent applicable, the deductibility of state and local income taxes for U.S. federal income tax purposes, the deduction for qualified business income under Section 199A of the Internal Revenue Code, and the character of the taxable income in question (i.e., long term capital gain, qualified dividend income, etc.)) applicable to any direct owner (or, if a direct owner is a pass-through entity, indirect owner) of Parent and its Subsidiaries for the taxable year in question (or portion thereof).
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“Permitted Transfer” has the meaning given to such term in Section 7.2.
“Permitted Variance” has the meaning given to such term in Section 6.23(b).
“Person” means and includes any individual, any partnership, any corporation, any business trust, any joint stock company, any limited liability company, any unincorporated association or any other entity and any Governmental Authority.
“PIK
Fee Amounts” has the meaning given to such term in the Amendment Number Six
Fee Letter.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established, maintained or required to be contributed to by a Loan Party or, with respect to any such plan that is subject to Section 412 of the Internal Revenue Code or Title IV of ERISA, by any ERISA Affiliate.
“Platform” has the meaning given to such term in Section 6.3(c).
“Preferred Stock”: as applied to the Equity Interests of any corporation or company, Equity Interest of any class or classes (however designated) that by its terms is preferred as to the payment of dividends, redemptions upon liquidation, dissolutions or winding up or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation or company, over Equity Interests of any other class of such corporation or company.
“Prepayment Event” means the occurrence of any of the following events or circumstance prior to the Maturity Date: (a) all or any portion of the Secured Obligations evidenced by the Term Loans are refinanced, repaid, prepaid or replaced or modified by operation of Law or reduced for any reason prior to the date of any scheduled repayment pursuant to this Agreement, including, without limitation, as a result of any optional or mandatory repayments of the Term Loans, by acceleration or otherwise, (b) there is a Bankruptcy Event, (c) all or any portion of the Obligations evidenced by the Term Loans are satisfied as a result of a foreclosure sale, deed in lieu or by similar means (including, without limitation, (x) a foreclosure or enforcement of any Lien on the Collateral pursuant to the Loan Documents or (y) a sale of the Collateral in any proceeding under Debtor Relief Laws) or (d) this Agreement (or the Secured Obligations evidenced by the Term Loans) terminates for any other reason.
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“Prepayment Premium” has the meaning specified therefor in Section 2.5(b).
“Prepayment Premium Event” has the meaning assigned to it in Section 2.5(b).
“Pro Rata Percentage” means, with respect to any Lender (a) a percentage equal to a fraction (i) the numerator of which is such Lender’s applicable undisbursed Term Loan Commitment (as the case may be), then in effect plus the aggregate unpaid principal balance of the applicable Term Loans (as the case may be) of such Lender and (ii) the denominator of which is the aggregate of the applicable undisbursed Term Loan Commitments (as the case may be) of all Lenders then in effect plus the aggregate unpaid principal balance of all outstanding applicable Term Loans (as the case may be) or (b) if all of the applicable Term Loan Commitments (as the case may be) have terminated, a percentage equal to a fraction (i) the numerator of which is the aggregate unpaid principal balance of the applicable Term Loans (as the case may be) of such Lender and (ii) the denominator of which is the aggregate unpaid principal balance of all outstanding applicable Term Loans (as the case may be).
“Project Milestones” means each of the milestones set forth on Schedule 6.18 hereto.
“Property” means any interest in any kind of property or asset, whether real, personal or mixed, whether tangible or intangible.
“Public Lender” has the meaning given to such term in Section 6.3(c).
“Purchasing Initial Lender” has the meaning assigned to it in Section 14.1(f).
“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).
“QFC Credit Support” has the meaning given to such term in Section 14.10(b).
“Qualified ECP Guarantor” means, in respect of any Hedge Obligations under a Secured Hedge Agreement, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Hedge Obligation under a Secured Hedge Agreement or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
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“Qualified Equity Interests” means any Equity Interests that do not constitute Disqualified Equity Interests.
“Qualifying Renewable Fuel” is defined as fuel eligible to generate RINs under the RFS Program.
“Real Property” means any estates or interests in real property now owned or hereafter acquired by any Loan Party or one of its Subsidiaries and the improvements thereto.
“Real Property Deliverables” means each of the following agreements, instruments and other documents in respect of each New Facility, each in form and substance reasonably satisfactory to the Required Lenders:
(a) a Mortgage duly executed by the applicable Loan Party, together with evidence of the recording of such Mortgage in such office or offices as may be necessary to create a valid and perfected Lien on such New Facility in favor of the Agent for the benefit of the Required Lenders (or evidence that such Mortgage has been deposited with such recording office or offices for recording) and that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Required Lenders;
(b) a paid Title Insurance Policy with respect to each Mortgage, dated as of the date such Title Insurance Policy is required to be delivered to the Agent;
(c) a current ALTA survey and a surveyor’s certificate, certified to Agent and to the issuer of the Title Insurance Policy with respect thereto by a professional surveyor licensed in the state in which such New Facility is located;
(d) customary opinions of counsel (x) from counsel in the state where such New Facility is located with respect to the enforceability of the Mortgage to be recorded and (y) from counsel of the jurisdiction of organization of the Loan Party entering into the Mortgage as to matters relating to due authorization and execution of the Mortgage by such Loan Party;
(e) to the extent reasonably requested by the Agent, an ASTM 1527-21 Phase I Environmental Site Assessment (“Phase I ESA”) by an independent firm reasonably satisfactory to the Required Lenders with respect to such New Facility;
(f) such documentation and information reasonably requested by any Lender (through the Agent) to ensure that such Lender is in compliance with the Flood Laws applicable to New Facility that is subject to a Mortgage, including, but not limited to, if required by Flood Laws obtaining flood insurance for such property, structures and contents prior to or upon such property, structures and contents becoming Collateral, and thereafter maintaining such flood insurance in full force and effect for so long as required by the Flood Laws; and
(g) such other agreements, instruments and other documents (including “bad boy” guarantees and opinions of counsel) as Agent may reasonably require and to the extent customarily required by lenders in comparable loan transactions.
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“Recipient” means (a) the Agent or (b) any Lender, as applicable.
“Recovery Event Proceeds” means any insurance proceeds from any Casualty Event or any condemnation proceeds (or similar recoveries) received by any Parent or any Subsidiary, in each case, net of (a) any reasonable and documented collection expenses and other direct costs incurred in connection therewith (including, without limitation, legal and accounting fees, if applicable), (b) taxes paid or reasonably estimated by the Borrower to be payable by the applicable Loan Party as a result thereof (after taking into account any available tax credit or deduction), and (c) any amount required to be applied to the repayment of any Indebtedness secured by a Lien on the asset subject to the Casualty Event or condemnation (excluding any repayment hereunder).
“Refining Intermediation Facility” means that certain Supply and Offtake Agreement, dated as of the Closing Date, entered into by and among Macquarie Energy North America Trading Inc. and certain of the Loan Parties (including any replacement or refinancing of thereof), as amended from time to time in accordance with the terms thereof and subject to and in accordance with the terms and conditions of the A&R Intercreditor Agreement.
“Refining Intermediation Facility Documents” means the Intermediation Facility Documents relating to the Refining Intermediation Facility.
“Register” has the meaning given to such term in Section 14.1.
“Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of the Closing Date, by and among Parent and the other Persons party thereto as “Holders” thereunder, as the same may be amended, restated, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms thereof.
“Regulatory Credits” mean any all current and future credits, benefits, air quality credits, renewable fuel credits, renewable energy credits and certificates, emission reductions, offsets and allowances on the GHG Attributes, including, without limitation, RINs under the RFS Program, renewable energy certificates and credits under the LCFS and other state and provincial low carbon fuel programs such as LCFS credits.
“Related Agreements” means, collectively, the Mobile Refinery Acquisition Agreement, Construction Agreement, Myrtle Grove Purchase Agreement, the Heartland Purchase Agreement, Acquisition Side Letter, any Intermediation Facility Documents, any agreements governing Indebtedness over the Threshold Amount, any Organization Documents and any Material Contracts.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, shareholders, controlling persons, members, directors, officers, employees, agents, trustees, administrators, financing sources, managers, advisors, attorneys-in-fact, managed funds and accounts and representatives of such Person and of such Person’s Affiliates and each of the successors and assigns of each of the foregoing.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including from any building, structure, facility or fixture and any movement of any Hazardous Material through the air, soil, surface water or groundwater.
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“Renewable Diesel Project” means the conversion of the Mobile Refinery to a facility capable of producing Qualifying Renewable Fuel under the RFS Program.
“Renewable
Feedstock” means one or more renewable biomass feedstocks used for the production of Renewable Fuels and sold
by Idemitsu to Renewables AL pursuant to a Sales Agreement entered into in
connection with the Idemitsu Product
Offtake Agreement,
but excluding for all purposes any and all industrial waste and any
feedstocks that are nonmerchantable, have no commercial value or do not, and upon further blending and processing by Renewables
AL cannot, otherwise meet both the requirements of the RFS Program and the Low Carbon Fuel Standard, including as relates to and
as applicable to the relevant Environmental Attribute.
“Renewable Fuels” means (a) Renewable Fuels (as defined in the RFS Program), and (b) transportation fuels that satisfy the applicable Low Carbon Fuel Standard and other state and provincial low carbon fuel programs.
“Renewable Product” means any of the finished and unfinished Renewable Fuels that satisfy the requirements of the RFS Program, the Low Carbon Fuel Standard or other state and provincial low carbon fuel programs, including, without limitation, any associated Environmental Attributes, but excluding for all purposes any products that were produced without intent to comply with the requirements of the RFS Program, Low Carbon Fuel Standard or other state and provincial low carbon fuel programs and are nonmerchantable or have no commercial value.
“Renewables AL” means Vertex Renewables Alabama LLC, a Delaware limited liability company.
“Replacement Lender” has the meaning specified therefor in Section 14.15.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.
“Required Lenders” means Lenders holding more than 66 2/3% of the sum of (a) the undisbursed Term Loan Commitments then in effect plus (b) the aggregate unpaid principal balance of the Term Loans then outstanding. Such portion of the aggregate undisbursed Term Loan Commitments and the sum of the aggregate unpaid principal amount of the Term Loans then outstanding, as applicable, held by a Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders at any time.
“Resolution Authority” means EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
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“Responsible Officer” means the President, Chief Executive Officer, Chief Financial Officer, Head of Finance, or Controller of any Loan Party.
“Restricted Information” means any material non-public information relating to the business and affairs of Parent and its Subsidiaries, including without limitation, any Confidential Information or other competitively sensitive information or trade secrets.
“Restricted Payment” means (a) any dividend or other distribution (including without limitation Permitted Tax Distributions), direct or indirect, on account of any shares (or equivalent) of any class of Equity Interests of Parent or any of its Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares (or equivalent) of any class of Equity Interests of Parent or any of its Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, including with respect to the Existing Convertible Notes, (d) any payment with respect to any earnouts, hold back amounts, deferred purchase price, contingent obligations or similar obligation and (e) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, conversion, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, the Existing Convertible Notes or any Indebtedness subordinated to the Term Loan.
“Restructuring Milestones” means the Restructuring Milestones set forth on Schedule 6.24 hereof.
“Revenue” means, for any Person, revenue received by such Person as determined in accordance with GAAP (consistently applied) from the sale of finished Goods, Inventory or services, in all cases in the ordinary course of such entity’s business, less returns, credits and sales taxes, computed using the same methodology employed in Current Financial Statements to report such matter.
“RFS Assets” means as of any date of determination and as determined by the Borrower in good faith the market value of RINs of the Loan Parties as of the last Business Day of the immediately preceding calendar month (as published by the Oil Price Information Service, commonly known as OPIS, or any successor market price-reporting agency or, if no such value is published by the Oil Price Information Service or any successor thereto as of such date, any other source selected by the Borrower in good faith that publishes market values of RINs and is generally accepted as a reference source in the refining industry) expressed in Dollars.
“RFS Liabilities” mean the amount, expressed in Dollars, of all (x) RIN obligations of the Borrower or any other Loan Party that have arisen in connection with the RFS Program as of any date of determination and as determined by the Borrower in good faith based on the market value of RINs as of the last Business Day of the immediately preceding calendar month (as published by the Oil Price Information Service, commonly known as OPIS, or any successor market price-reporting agency or, if no such value is published by the Oil Price Information Service or any successor thereto as of such date, any other source selected by the Borrower in good faith that publishes market values of RINs and is generally accepted as a reference source in the refining industry) and (y) fines, penalties, costs or liabilities of the Borrower or any other Loan Party that have arisen in connection with the RFS Program as of any date of determination and as determined by the Borrower in good faith.
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“RFS Program” means the renewable fuel program and policies established section 211(o) of the Clean Air Act (42 U.S.C. § 7545(o)) as implemented by the U.S. Environmental Protection Agency under Subpart M of Part 80 of Title 40 of the Code of Federal Regulations.
“Right of First Offer” has the meaning assigned to it in Section 14.1(f).
“Rights
to Payment” means any and all
of Renewables AL’s Accounts arising in connection with the sale of Renewable Fuels and Renewable Product solely arising
from obligations under the Sales Agreements entered into in connection with the Idemitsu Product Offtake Agreement and any
and all of Renewables AL’s rights and claims to the payment or receipt of money or other forms of consideration of any
kind arising in connection with the sale of Renewable Fuels and Renewable Product solely arising from obligations under the
Sales Agreements entered into in connection with the Idemitsu Product Offtake Agreement.
“RIN” means the renewable identification number, which is the serial number assigned to a batch of biofuel for the purpose of tracking biofuel production, use and trading as required by the RFS Program.
“RIN Generation Protocol” is defined as the document (x) setting forth the Borrower’s process for RIN generation, transfer and separation and (y) establishing and describing the temperature-correcting methodology for Qualifying Renewable Fuel for inclusion in Engineering Review. For renewable diesel produced via co-processing renewable and petroleum feedstocks, the document must incorporate the U.S. Environmental Protection Agency’s required C14 testing protocol.
“Rolling Stock” means all Equipment (as defined in the UCC) covered by a certificate of title under applicable state law, including, without limitation, trucks, trailers, tractors, and other registered mobile equipment.
“RVOs” means Renewable Volume Obligations, as calculated pursuant to 40 C.F.R. 80.1407.
“Sanctions” means economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by Governmental Authorities in the United States (including, but not limited to, OFAC, the U.S. Department of State and the U.S. Department of Commerce), the United Nations Security Council, the European Union, Her Majesty’s Treasury or any other relevant Governmental Authority.
“Sanctions Target” means any Person: (a) that is the subject or target of any Sanctions; (b) named in any Sanctions-related list maintained by OFAC, the U.S. Department of State, the U.S. Department of Commerce or the U.S. Department of the Treasury, including the OFAC list of “Specially Designated Nationals and Blocked Persons,” or any similar list maintained by the United Nations Security Council, the European Union, Her Majesty’s Treasury or any other relevant Governmental Authority (c) located, organized or resident in a country, territory or geographical region which is itself the subject or target of any Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria, Crimea and so-called Donetsk People’s Republic and Luhansk People’s Republic regions of Ukraine, and, prior to January 1, 2017, Sudan) or (d) owned or controlled (as such terms are defined by the applicable Sanctions) by any such Person or Persons described in the foregoing clauses (a)-(c).
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“SEC” means the Securities and Exchange Commission, or any governmental or regulatory authority succeeding to any of its principal functions.
“Second Amendment Effective Date” means September 30, 2022.
“Secured Bank Product Agreement” means any Bank Product permitted to be incurred under Section 7.5 and permitted to be secured under Section 7.4 that is entered into by and between any Loan Party (and to the extent such Loan Party is not the Borrower, the Borrower as joint and several primary obligor thereunder) and any Bank Product Provider and designated by the Borrower and the Bank Product Provider in writing to the Agent as a “Secured Bank Product Agreement”; provided that no such agreement (shall constitute a Secured Bank Product Agreement unless and until Agent receives an agreement (in form and substance reasonably satisfactory to the Required Lenders) from such Person on or prior to the date that is ten (10) days after the provision of such Bank Product to a Loan Party (or such later date as Agent (at the direction of the Required Lenders) shall agree to in writing in its sole discretion) with respect to Bank Product Agreements entered into after the Closing Date. The designation of any Bank Products as a “Secured Bank Product Agreement” shall not create in favor of such Bank Product Provider any rights in connection with the management or release of Collateral or the obligations of any Loan Party under the Loan Documents.
“Secured Hedge Agreement” means any Hedging Agreement permitted to be incurred under Section 7.5 and permitted to be secured under Section 7.4 that is entered into by and between any Loan Party (and to the extent such Loan Party is not the Borrower, the Borrower as joint and several primary obligor thereunder) and any Hedge Provider and designated by the Borrower and the Hedge Provider in writing to the Agent as a “Secured Hedge Agreement”; provided that no such agreement (shall constitute a Secured Hedge Agreement unless and until Agent receives an agreement (in form and substance reasonably satisfactory to the Required Lenders) from such Person on or prior to the date that is ten (10) days after the effectiveness of such Hedging Agreement (or such later date as Agent (at the direction of the Required Lenders) shall agree to in writing in its sole discretion) with respect to Hedging Agreements entered into after the Closing Date. The designation of any Hedging Agreement as a “Secured Hedge Agreement” as provided above shall not create in favor of such Hedge Provider any rights in connection with the management or release of Collateral or the obligations of any Loan Party under the Loan Documents.
“Secured
Obligations” means all Obligations, all Bank Product Obligations arising under Secured Bank Product Agreements and Secured
Hedge Agreements, any Erroneous Payment Subrogation Rights and all Additional Secured Obligations. Without limiting the generality
of the foregoing, the Secured Obligations of the Loan Parties include (a) the obligation (irrespective of whether a claim therefor
is allowed in a proceeding under any Debtor Relief Law) to pay principal, interest, fees (including, without limitation, any Prepayment
Premium, Exit Fee, Exit Fee 2024 or any,
JS Exit Fee or any June PIK Fee Amounts, July PIK Fee Amounts or JS PIK Fee Amounts, whether primary, secondary, direct,
indirect, contingent, fixed or otherwise (including obligations of performance) and/or attorneys’ fees), and disbursements,
indemnities and other amounts payable by such Person under the Loan Documents, (b) the obligation to pay all costs and expenses
incurred by the Agent and/or any other Secured Party to obtain, preserve, perfect and enforce the security interest granted herein
and to maintain, preserve and collect the property subject to the security interest, including but not limited to all reasonable
attorneys’ fees and expenses of any Secured Party to enforce any Obligations whether or not by litigation, and (c) the obligation
to reimburse any amount in respect of any of the foregoing that any Secured Party (in its reasonable discretion pursuant to the
terms of this Agreement or any other Loan Document) may elect to pay or advance on behalf of the Loan Parties.
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“Secured Parties” means, collectively, the Agent, the Lenders, the Bank Product Providers party to Secured Bank Product Agreements, the Indemnified Persons and each co-agent or sub-agent appointed by the Agent from time to time pursuant to Section 12.1; provided that no such Bank Product Provider (including any Hedge Provider), in its capacity as such, shall have any rights under any Loan Document in connection with the management or release of any Collateral or the obligations of any Loan Party under the Loan Documents.
“Securities Account” means any “securities account” as defined in the Code.
“Selling Initial Lender” has the meaning assigned to it in Section 14.1(f).
“September 30 Payment” means the interest and principal payments with respect to the Term Loans (including for the avoidance of doubt, any Term Loans funded on the Seventh Amendment Funding Date) which as of the Seventh Amendment Effective Date would have been due on September 30, 2024.
“Seventh Amendment Effective Date” means July 24, 2024.
“Seventh Amendment Funding Date” has the meaning set forth in Amendment Number Seven.
“Shared Facilities Agreement” means that certain Shared Facilities Agreement, dated as of May 26, 2023, by and between the Borrower and Renewables AL.
“Shared Services Agreement” means that certain Shared Services Agreement, dated as of May 26, 2023, by and between the Borrower and Renewables AL.
“Similar Business” any of the following, whether domestic or foreign: refining used motor oil (as described in the definition of Used Motor Oil Asset Divestiture), processing various grades of sweet crude oil and renewable biomass into gasoline, diesel, renewable diesel, vacuum gas oil, jet, renewable jet, benzene concentrate, LPG and other miscellaneous related products or byproducts, for sale to customers via pipeline, marine transportation and truck, any acquired business activity so long as a material portion of such acquired business was otherwise a Similar Business, and any business that is ancillary or complementary to the foregoing.
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“Sixth Amendment Effective Date” means June 25, 2024.
“Solvency Certificate” means a solvency certificate in substantially the form of Exhibit H.
“Specified Equity Issuance” means one or more Equity Issuances (including to the issuance of convertible notes or other convertible securities) issued by the Parent on terms reasonably satisfactory to the Required Lenders, in any case, resulting in Net Cash Proceeds not to exceed $50,000,000.
“Subject Indebtedness” has the meaning given to such term in Section 6.20.
“Subordinated Debt” means any Indebtedness incurred by any Loan Party that is subordinated to the Secured Obligations pursuant to a Subordination Agreement on terms acceptable to Required Lenders.
“Subordination Agreement” means any subordination, intercreditor, or other similar agreement in form and substance satisfactory to the Required Lenders entered into between Agent and the other creditor, on terms acceptable to the Required Lenders whereby a Person subordinates the Indebtedness of a Loan Party owing to such Person to the Indebtedness of a Loan Party owing to Agent and/or Lenders.
“Subordination Provisions” has the meaning assigned to it in Section 8.16.
“Subsidiary” means any Person that is an entity of which a majority of the outstanding capital stock, membership interests or other equity interests entitled to vote for the election of directors, managers or the equivalent is owned, controlled or held by Parent directly or indirectly through Subsidiaries including any Subsidiary formed after the Closing Date, in each case, other than Excluded Subsidiaries as of such date.
“Subsidiary Guarantor” has the meaning given to such term in preamble to this Agreement.
“Supermajority Lenders” means Lenders holding more than 80% of the sum of (a) the undisbursed Term Loan Commitments then in effect plus (b) the aggregate unpaid principal balance of the Term Loans then outstanding. Such portion of the aggregate undisbursed Term Loan Commitments and the sum of the aggregate unpaid principal amount of the Term Loans then outstanding, as applicable, held by a Defaulting Lender shall be excluded for purposes of making a determination of Supermajority Lenders at any time.
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“Supported QFC” has the meaning given to such term in Section 14.10(b).
“Synthetic Lease Obligations” means, as to any Person, an amount equal to the capitalized amount of the remaining lease payments under any synthetic lease that would appear on a balance sheet of such Person in accordance with GAAP (consistently applied) if such obligations were accounted for as Capital Lease Obligations.
“Tax Group” has the meaning set forth in the definition of “Permitted Tax Distributions”.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan” means (a) the Initial Term Loans,
(b) the Additional Term Loans, (c) the 2023 Term Loans, (d) the 2024 Term Loans and, (e) the JS Loans and (f) any Incremental Term Loans
pursuant to Section 2.13.
“Term
Loan Commitment” means (i) on the Closing Date, (a) with respect to all Lenders, $125,000,000 and (b) with respect
to each Lender, the amount set forth opposite such Lender’s name on Schedule 2.1(a) attached hereto under the
column entitled “Term Loan Commitments as of the Closing Date”, which for the avoidance of doubt were funded in
full on the Closing Date, (ii) on the First Amendment Effective Date, (a) with respect to all Lenders, $40,000,000 and
(b) with respect to each Lender, the amount set forth opposite such Lender’s name on Schedule 2.1(a) attached
hereto under the column entitled “Additional Term Loan Commitments as of the First Amendment Effective Date”,
(iii) on the Fifth Amendment Effective Date, (a) with respect to all Lenders, $50,000,000 and (b) with respect to each
Lender, the amount set forth opposite such Xxxxxx’s name on Schedule 2.1(a) attached hereto under the column
entitled “2023 Term Loan Commitments as of the Fifth Amendment Effective Date”, (iv) on the Sixth Amendment
Effective Date, (a) with respect to all Lenders, $15,000,000 (exclusive of any June PIK
Fee Amounts) and (b) with respect to each Lender, the amount set forth opposite such Lender’s name on Schedule
2.1(a) attached hereto under the column entitled “2024 Term Loan Commitments as of the Sixth Amendment Effective
Date (exclusive of any June PIK Fee Amounts)” and, (v)
on the Seventh Amendment Effective Date, with respect to the JS Lender, $20,000,000 and (vi) any Incremental Term
Loan Commitments.
“Term Loan Priority Collateral” has the meaning specified therefor in the A&R Intercreditor Agreement.
“Test Period” means, at any time, each four-week period ended on a Friday; provided that the first Test Period after the Seventh Amendment Effective Date shall be the period from the Seventh Amendment Effective Date until first full four weeks after the Seventh Amendment Effective Date.
“Third Amendment Effective Date” means January 8, 2023.
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“Threshold Amount” means $2,000,000.
“Title Insurance Policy” means a mortgagee’s loan policy, in form and substance reasonably satisfactory to the Required Lenders, together with all customary endorsements made from time to time thereto and available in the state in which the New Facility is located, issued by or on behalf of a title insurance company reasonably satisfactory to the Required Lenders, insuring the Lien created by a Mortgage in an amount equal to the loan amount allocated to such real property secured by the Mortgage and on terms otherwise reasonably satisfactory to the Required Lenders and delivered thereto.
“Trademarks” means any and all trademark and service mark rights, whether registered or not, applications to register and registrations of the same and like protections (whether filed with the USPTO or any similar offices in any State of the United States), and the entire goodwill of the business of Loan Party connected with and symbolized by such trademarks, together with any and all (i) rights and privileges arising under Applicable Law, (ii) extensions and renewals thereof and (iii) rights corresponding thereto throughout the world.
“Transfer” has the meaning given to such term in Section 7.2. “Transferred” has a correlative meaning.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling with IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unrestricted Cash” of any Person, means cash or Cash Equivalents of such Person, (a) that are not, and are not required to be, designated as “restricted” on the financial statements of such Person, (b) that are not contractually required, and have not been contractually committed by such Person, to be used for a specific purpose, (c) that are not subject to (i) any provision of law, statute, rule or regulation, (ii) any provision of the organizational documents of such Person, (iii) any order of any Governmental Authority or (iv) any contractual restriction (including the terms of any Equity Interests), in each case of (i) through (iv), preventing such cash or Cash Equivalents from being applied to the payment of the Obligations, (d) in which no Person other than Agent has a Lien other than Permitted Liens as set forth in clause (g) of the definition of Permitted Liens, and (e) that are held in a Deposit Account or Securities Account, as applicable, in which Agent has a valid and enforceable security interest, perfected by “control” (within the meaning of the applicable Code or for any Deposit Account or Securities Account located outside the United States, other controlling legal authority), but in all cases shall exclude the amount of such Person’s Indebtedness which is more than 10 Business Days overdue (or in the case of Indebtedness of the type described in clause (e) of the definition of Indebtedness, remains outstanding more than 10 Business Days from the date constituting Indebtedness).
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“U.S. Borrower” means any Borrower that is a U.S. Person.
“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“U.S. Special Resolution Regimes” has the meaning given to such term in Section 14.10(b).
“U.S. Tax Compliance Certificate” has the meaning given to such term in Section 2.9(g).
“USA FREEDOM Act” means The Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring (USA FREEDOM ACT) Act of 2015, Public Law 114-23 (June 2, 2015), as may be amended.
“USA PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as may be amended.
“Used Motor Oil Asset Divestiture” means the sale, transfer or other disposition of any substantial portion of the businesses and related assets owned or controlled by Borrower and/or its Affiliates consisting primarily of (1) operating two used oil refineries and a barge terminal and, in connection therewith, acquiring used lubricating oils from commercial and retail establishments and re-refining such oils into processed oils and other products for the distribution, supply and sale to end-customers, (2) collecting and processing used motor oil, oil filters, and related automotive waste streams and (3) the provision of related products and support services.
“Variance Report” means a bi-weekly variance report, covering the Test Period, in each case, setting forth for the two weeks ended on the immediately preceding Friday prior to the delivery thereof (1) the positive variance (as compared to the Approved Forecast for such Test Period) of the aggregate operating disbursements made by the Borrower in the aggregate for the applicable Test Period and (2) an explanation, in reasonable detail, for any positive variance greater than 20%, certified by a Responsible Officer of Borrower.
“Vehicles” means (i) all cars, Rolling Stock, construction and earth moving equipment and other vehicles covered by a certificate of title or similar evidence of title, law of any state, (ii) motor vehicles, trailers, and road vehicles in each case as defined in any applicable UCC and any other term now or hereafter used to describe or define any of the foregoing in any applicable UCC, and (iii) in any event, shall include, without limitation, the vehicles listed on Schedules 3(A)(4) or 3(A)(5) of the Disclosure Letter.
“Vitol” means Vitol Netherlands Coöperatief U.A.
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“Warrant Agent” means the “Warrant Agent” and any successor entities as defined in the Warrant Agreement, the Additional Warrant Agreement, the 2023 Warrant Agreement, the 2024 Warrant Agreement or the Additional 2024 Warrant Agreement, as applicable.
“Warrant Agreement” means that certain Warrant Agreement, dated as of the Closing Date, by and between Parent and Warrant Agent, as the same may be amended, restated, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms thereof, including by the Warrant Agreement Amendment. The Agent shall have no obligation to monitor the terms of the Warrant Agreement.
“Warrant Agreement Amendment” means Amendment No. 1 to the Warrant Agreement, dated as of the Fifth Amendment Effective Date, by and between Parent and the Warrant Agent.
“Warrants”
means (i) the Initial Warrants, (ii) the Additional Warrants, (iii) the 2023 Warrants and, (iv)
the 2024 Warrants and (v) the Additional 2024
Warrants.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness; provided that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness that is being modified, refinanced, refunded, renewed, replaced or extended (the “Applicable Indebtedness”), the effects of any prepayments made on such Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extension shall be disregarded.
“Whitebox Lender” means each of the Lenders party hereto that are affiliated with or managed by Whitebox Advisors, LLC.
“Withholding Agent” means the Borrower and the Agent.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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1.2 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.
1.3 Other
Interpretive Provisions. References in this Agreement to “Articles,” “Sections,”
“Exhibits,” “Schedules” and “Annexes” are to articles, sections, exhibits, schedules and
annexes herein and hereto unless otherwise indicated. References in this Agreement and each of the other Loan Documents to
(a) any other document, instrument or agreement shall include all exhibits, schedules, annexes and other attachments thereto,
and (b) any law, statute or regulation shall include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such law, statute or regulation, and (c) any reference herein to any Person shall be
construed to include such Person’s successors and permitted assigns. References to this Agreement or any of the other
Loan Documents shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified
and supplemented from time to time and in effect at any given time, provided that Borrower may amend the Disclosure Letter
unilaterally only as expressly authorized in Section 5 herein. The words “hereof,” “herein” and
“hereunder” and words of similar import when used in this Agreement or any other Loan Document shall 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. The words “include” and “including” and
words or similar import when used in this Agreement or any other Loan Document shall not be construed to be limiting or
exclusive. Unless otherwise indicated in this Agreement or any other Loan Document, (d) all references to dollars, Dollars or
$ shall mean United States Dollars, and (e) all accounting terms used in this Agreement or any other Loan Document (e.g.
revenue) shall be construed, and all accounting and financial computations hereunder or thereunder shall be computed,
in accordance with GAAP, consistently applied. Any of the terms defined herein may, unless the context otherwise requires, be
used in the singular or the plural, depending on the reference. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. Any reference herein or in any other Loan Document to the
“satisfaction,” “repayment,” “paid in full” or “payment in full” of the
Secured Obligations (including the “Guaranteed Obligations” and the “Secured Obligations” as may be
defined in any Collateral Document) shall mean the repayment in Dollars in full in cash of immediately available funds of all
of the Secured Obligations including the Prepayment Premium and any Applicable Exit
Fee or Exit Fee 2024,
as applicable, other than (x) unasserted contingent indemnification obligations or (y) Bank Product Obligations or
Additional Secured Obligations relating to such Bank Product Obligations unless acceptable arrangements have been made with
the Bank Product Providers holding such Bank Product Obligations. A Default or Event of Default shall be deemed to exist at
all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such
Default or Event of Default is waived in writing pursuant to this Credit Agreement or, in the case of a Default, is cured
within any period of cure expressly provided for in this Credit Agreement; and an Event of Default shall
“continue” or be “continuing” until such Event of Default has been waived in writing by the Required
Lender.
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2. | Term Loan and Terms of Payment. |
2.1 | Term Loan. |
(a) Prior to the Closing Date, subject to the terms and conditions of the Commitment Letter and the Escrow Agreement, each Lender shall have funded the Initial Term Loan in an amount equal to its Initial Term Loan Commitment (net of certain fees and expenses payable prior to the Closing Date pursuant to the Fee Letter) to the Escrow Account. Upon satisfaction of the conditions precedent specified in Section 3.1, the Initial Lenders, shall, together with the Borrower, deliver a Joint Release Instruction (as defined in the Escrow Agreement) to the Escrow Agent under the Escrow Agreement directing the Escrow Agent to make the full amount on deposit in the Escrow Account available to the Borrower on the Closing Date for disbursement (net of certain fees and expenses payable pursuant to the Commitment Letter) in accordance with the Funds Flow Memorandum, which shall constitute the making of the Initial Term Loan to the Borrower for purposes hereof.
(b) Upon satisfaction and/or waiver of the conditions precedent specified in Section 4 of Amendment Number One, on the First Amendment Effective Date, each Lender shall fund the Additional Term Loan in an amount equal to its Additional Term Loan Commitment (net of certain fees and expenses payable prior to the First Amendment Effective Date pursuant to the Amendment Number One Fee Letter) to the Borrower in accordance with the Funds Flow Memorandum, which shall constitute the making of the Additional Term Loan to the Borrower for purposes hereof.
(c) Upon satisfaction and/or waiver of the conditions precedent specified in Section 3 of Amendment Number Five, on the Fifth Amendment Effective Date, each Lender shall fund the 2023 Term Loan in an amount equal to its 2023 Term Loan Commitment (net of certain fees and expenses payable prior to the Fifth Amendment Effective Date pursuant to the Amendment Number Five) to the Borrower in accordance with the Funds Flow Memorandum, which shall constitute the making of the 2023 Term Loan to the Borrower for purposes hereof.
(d) After the Sixth Amendment Effective Date and upon satisfaction and/or waiver of the conditions precedent specified in Section 5 of Amendment Number Six on the 2024 Borrowing Date, each Lender shall fund the 2024 Term Loan in an amount equal to its 2024 Term Loan Commitment (net of the June 28 Payment and certain fees and expenses payable prior to the Sixth Amendment Effective Date pursuant to the Amendment Number Six) to the Borrower in accordance with the Funds Flow Memorandum, which shall constitute the making of the 2024 Term Loan to the Borrower for purposes hereof.
(e) After the Seventh Amendment Effective Date and upon satisfaction and/or waiver of the conditions precedent specified in Section 5 of Amendment Number Seven on the Seventh Amendment Funding Date, the JS Lender shall fund the JS Loan in an amount equal to its JS Commitment (net of certain fees and expenses payable prior to the Seventh Amendment Effective Date pursuant to the Amendment Number Seven) to the Borrower in accordance with the Funds Flow Memorandum, which shall constitute the making of the JS Loan to the Borrower on the Seventh Amendment Funding Date for the purposes hereof. The JS Loans shall be funded directly to the Borrower and shall not be funded through the Agent.
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2.2 | Use of Proceeds; The Term Loan. |
(a) Use of Proceeds. The proceeds of the Initial Term Loan provided on the Closing Date, shall be used solely to fund (i) the Mobile Refinery Acquisition, (ii) the renewable diesel conversion of the Mobile Refinery, (iii) working capital and liquidity needs and (iv) certain fees and expenses associated with the closing of the Initial Term Loan, in all cases, subject to the terms of this Agreement. The proceeds of the Additional Term Loan provided on the First Amendment Effective Date, shall be used solely to fund (i) all or a portion of the purchase price under the Heartland Purchase Agreement and the Acquisition Side Letter and (ii) certain fees and expenses associated with the closing of the transactions contemplated by the Heartland Purchase Agreement and the Acquisition Side Letter, and the Additional Term Loan, in all cases, subject to the terms of this Agreement. The proceeds of the 2023 Term Loan provided on the Fifth Amendment Effective Date, shall be used solely for (i) general corporate purposes, funding working capital and liquidity needs and (ii) certain fees and expenses associated with Amendment Number Five, in all cases, subject to the terms of this Agreement. The proceeds of the 2024 Term Loan provided on the 2024 Borrowing Date, shall be used solely for (i) general corporate purposes, (ii) Lender Expenses, and (iii) the June 28 Payment, in all cases, subject to the terms of this Agreement and in accordance with the Funds Flow Memorandum. The proceeds of the JS Loan provided on the Seventh Amendment Funding Date, shall be used solely in accordance with the Approved Forecast for (i) general corporate purposes and (ii) Lender Expenses, in all cases, subject to the terms of this Agreement and in accordance with the Funds Flow Memorandum.
(b) The Term Loan. The Term Loan shall be repayable as set forth in Section 2.4. If prepaid or repaid, the principal of the Term Loan may not be re-borrowed. Each Lender and Agent may, and are hereby authorized by Borrower to, endorse in Lender’s and Agent’s books and records appropriate notations regarding such Xxxxxx’s interest in the Term Loan; provided, however, that the failure to make, or an error in making, any such notation shall not limit or otherwise affect the Obligations.
2.3 | Procedure for Making the Term Loan; Interest. |
(a) | Notice and Eligibility. |
(i) The Notice of Borrowing for the Initial Term Loan must be submitted by 3:00 p.m. New York time at least one (1) Business Day before the Closing Date. Upon receipt of a Notice of Borrowing, Agent shall promptly notify the Lenders. The Closing Date shall be subject to the satisfaction of the conditions set forth in Section 3.1. Upon satisfaction of the conditions set forth in Section 3.1, each Initial Lender with a Term Loan Commitment applicable to Initial Term Loan agrees, severally and not jointly, to deliver the Joint Release Instruction as provided in Section 3.1. The amount of the requested Initial Term Loan on the Closing Date shall be $125,000,000 (net of any upfront fees and OID).
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(ii) The Notice of Borrowing for the Additional Term Loan must be submitted by 3:00 p.m. New York time at least one (1) Business Day before the First Amendment Effective Date. Upon receipt of such Notice of Borrowing, Agent shall promptly notify the Lenders. Upon satisfaction and/or waiver of the conditions set forth in Section 4 of Amendment Number One, each Lender with a Term Loan Commitment applicable to the Additional Term Loan agrees, severally and not jointly, to fund its Pro Rata Percentage of the Additional Term Loan to the Borrower to such account specified in the Notice of Borrowing. The amount of the requested Additional Term Loan on the First Amendment Effective Date shall be $40,000,000 (net of any upfront fees and OID).
(iii) The Notice of Borrowing for the 2023 Term Loan must be submitted by 3:00 p.m. New York time at least one (1) Business Day before the Fifth Amendment Effective Date. Upon receipt of such Notice of Borrowing, Agent shall promptly notify the Lenders. Upon satisfaction and/or waiver of the conditions set forth in Section 3 of Amendment Number Five, each Lender with a Term Loan Commitment applicable to the 2023 Term Loan agrees, severally and not jointly, to fund its Pro Rata Percentage of the 2023 Term Loan to the Borrower to such account specified in the Notice of Borrowing. The amount of the requested 2023 Term Loan on the Fifth Amendment Effective Date shall be $50,000,000 (net of any Lender Expenses to be paid in accordance with Amendment Number Five).
(iv) The Notice of Borrowing for the 2024 Term Loan must be submitted by 3:00 p.m. New York time at least two (2) Business Days before the 2024 Borrowing Date. Upon receipt of such Notice of Borrowing, Agent shall promptly notify the Lenders. Upon satisfaction and/or waiver of the conditions set forth in Section 5 of Amendment Number Six, each Lender with a Term Loan Commitment applicable to the 2024 Term Loan agrees, severally and not jointly, to fund its Pro Rata Percentage of the 2024 Term Loan to the Borrower to such account specified in the Funds Flow Memorandum. The amount of the requested 2024 Term Loan on the 2024 Borrowing Date shall be $15,000,000 (exclusive of any fees to be paid pursuant to the Amendment Number Six Fee Letter and net of any Lender Expenses to be paid in accordance with Amendment Number Six).
(v) The Notice of Borrowing for the JS Loan must be submitted to the Agent and the JS Lender by 3:00 p.m. New York time at least two (2) Business Days before the Seventh Amendment Funding Date. Upon satisfaction and/or waiver of the conditions set forth in Section 5 of Amendment Number Seven, the JS Lender agrees to fund the JS Loan to the Borrower to such account specified in the Funds Flow Memorandum. The amount of the requested JS Loan on the Seventh Amendment Funding Date shall be $20,000,000 (net of any Lender Expenses to be paid in accordance with Amendment Number Seven).
(b) Interest Rate. Interest will accrue on the unpaid principal amount of the Term Loan, including any June PIK Fee Amounts, July PIK Fee Amounts or JS PIK Fee Amounts, from the date of funding of such Term Loan until such Term Loan has been paid in full, at a per annum rate of interest equal to the Applicable Rate, payable as set forth in Section 2.4(a). All computations of interest shall be based on a year of three hundred sixty (360) days for actual days elapsed including the first day, but excluding the last. Notwithstanding any other provision hereof, the amount of interest payable hereunder shall not in any event exceed the maximum amount permitted by the law applicable to interest charged on commercial loans.
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(c) Disbursement. Subject to the satisfaction of the conditions set forth in Section 3.1, upon receipt of the funds from the Escrow Account, Agent shall make all funds so received available to Borrower in like funds as received by Agent by wire transfer of such in accordance with the Funds Flow Memorandum.
2.4 | Payments of Principal and Interest. |
(a) Interest Payments. Interest on the Term Loan shall be payable in cash (i) quarterly, in arrears, on the last Business Day of each calendar quarter, commencing on the last Business Day of the calendar quarter ending June 30, 2022, (ii) in connection with any payment, prepayment or repayment of the Term Loan, and (iii) at maturity (whether upon demand, by acceleration or otherwise); provided however, that the interest on the 2023 Term Loans that would have been payable on December 29, 2023 shall instead continue to accrue and be payable on the earlier of (i) March 28, 2024, (ii) in connection with any payment, prepayment or repayment of the Term Loan, and (iii) at maturity (whether upon demand, by acceleration or otherwise).
(b) Amortization of Principal. On the last Business Day of each March, June, September and December ending on or after September 30, 2023, Borrower shall repay the Term Loan in quarterly installments as specified in the table below which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.6(c), unless accelerated sooner pursuant to Section 9.1:
Payment Dates |
Principal
Repayment Loans and Additional Loans |
Principal Repayment Loans |
Principal Repayment Installments on 2024 Term Loans |
Principal Loans |
December 29, 2023 | $2,062,500.00 | $0 | $0 | $0 |
March 28, 2024 | $2,062,500.00 | $0 | $0 | $0 |
June 28, 2024 | $2,062,500.00 | $625,000.00 | $0 | $0 |
September 30, 2024 | $2,062,500.00 | $625,000.00 | $199,617.97 | $266,157.29 |
December 31, 2024 | $2,062,500.00 | $625,000.00 | $199,617.97 | $266,157.29 |
(c) Principal
Payment at or Prior to Maturity. Unless the Term Loan is prepaid in full prior to the Maturity Date, Borrower shall pay
the entire unpaid principal and accrued interest and all unpaid Obligations constituting Secured Obligations and
Additional Secured Obligations relating to such Obligations on the Maturity Date, including, if applicable, any Prepayment
Premium, or Applicable Exit Fee or
Exit Fee 2024. Agent shall allocate and distribute all such payments to the Lenders based on each
Lender’s Pro Rata Percentage.
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(d) Payments to JS Lender. All principal and interest payments with respect to the JS Loans shall be made directly from Borrower to the JS Lender at the account designated by the JS Lender and shall not be paid through the Agent.
2.5 | Fees and Expenses. |
(a) | [Reserved]. |
(b)
Applicable Premium. With respect to the Initial Term Loans and Additional Term Loans (and not for the avoidance
of doubt, the 2023 Term Loans or the 2024 Term Loans, or the JS Loans), (A) upon the earliest to occur
of: (I) the payment, prepayment, repayment or redemption of the Secured Obligations in full prior to the Maturity Date or (II)
any Prepayment Event (other than any payment, prepayment or repayment under Sections 2.4(b), 2.6(a)(iii) (to the
extent the Recovery Event Proceeds are reinvested pursuant to such Section), 2.6(a)(v) or 2.6(a)(vii)) (the events
or circumstance set forth in clauses (I) and (II) above and clause (B) below (including, without limitation,
the occurrence or commencement of any insolvency proceeding or other Bankruptcy Event), shall each be referred to herein as an
“Prepayment Premium Event”) (i) at any time during the first eighteen (18) months after the Closing Date, the
Borrower shall pay to Agent, for the account of the Lenders in accordance with their Pro Rata Percentage (x), one hundred fifty
percent (150%) of the Applicable Rate or Default Rate (as applicable), multiplied by (y), the amount of such payment, prepayment
or repayment, (ii) at any time during or after the nineteenth (19th) month through twenty-fourth (24th) month after the Closing
Date, the Borrower shall pay to Agent, for the account of the Lenders in accordance with their Pro Rata Percentage (x), fifty
percent (50%) of the Applicable Rate or Default Rate (as applicable), multiplied by (y), the amount of such payment, prepayment
or repayment and (iii) at any time during or after the twenty-fifth (25) month after the Closing Date but prior to the date that
is ninety (90) days before the Maturity Date, the Borrower shall pay to Agent, for the account of the Lenders in accordance with
their Pro Rata Percentage (x), twenty five percent (25%) of the Applicable Rate or Default Rate (as applicable), multiplied by
(y), the amount of such payment, prepayment or repayment or (B) upon the making of any payment, prepayment or repayment in accordance
with Section 2.6(a)(v) or Section 2.6(a)(vii), the Borrower shall pay to Agent, for the account of the Lenders in
accordance with their Pro Rata Percentage, a premium equal to 1.00% of the aggregate principal amount of the Initial Term Loans
and Additional Term Loans (and not for the avoidance of doubt, the 2023 Term Loans or, the 2024 Term Loans or the JS Loans) so prepaid
(collectively clauses (A) and (B), each a “Prepayment Premium”). The Prepayment Premium with respect to the
Initial Term Loans shall be fully earned on the Closing Date and due and payable immediately upon the occurrence of any Prepayment
Premium Event. The Prepayment Premium with respect to the Additional Term Loans shall be fully earned on the First Amendment Effective
Date and due and payable immediately upon the occurrence of any Prepayment Premium Event. The Prepayment Premium shall be in addition
to any accrued and unpaid interest, reimbursement obligations or other amounts payable in connection with the Loan Documents.
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(c) Exit Fee or, Exit Fee 2024 or JS Exit Fee. Upon the earliest
to occur of: (A) the payment, prepayment, repayment or redemption of the Secured Obligations in full, (B) the Maturity Date and
(C) any Prepayment Event (other than payments under Sections 2.4(b) or 2.6(a)(iii) (to the extent the Recovery Event
Proceeds are reinvested pursuant to such Section)) (the events or circumstances set forth in clauses (A), (B) and
(C) above (including, without limitation, the occurrence or commencement of any insolvency proceeding or other Bankruptcy
Event), shall each be referred to herein as an “Exit Fee Event”) with respect to any 2023 Term Loans or, 2024 Term Loans or JS Loans, as applicable, the
Borrower shall pay (y) to Agent, for the account of either
(i) the 2023 Term Loan Lenders, or (ii) the 2024 Term Loan Lenders,
as applicable, in accordance with their Pro Rata Percentage, (i) the Exit Fee,
or (ii) the Exit Fee 2024, as applicable and (z) to the JS
Lender, the JS Exit Fee. The Exit Fee with respect to any 2023 Term Loans shall be fully earned on the Fifth Amendment
Effective Date and, the Exit Fee 2024 with respect to any 2024 Term Loans funded
on the 2024 Borrowing Date shall be fully earned on the Sixth Amendment Effective Date,
the JS Exit Fee with respect to any JS Loans shall be fully earned on the Seventh Amendment Effective Date, and in
each case, shall due and payable immediately upon the occurrence of any Exit Fee Event. The Exit Fee or, the Exit Fee 2024 or the JS Exit Fee, as applicable,
shall be in addition to any reimbursement obligations or other amounts payable in connection with the Loan Documents. The Exit
Fee, and the Exit Fee 2024 calculations, as applicable, shall
be determined by the Agent as confirmed by the Required Lenders. The
JS Exit Fee calculation shall be determined by the JS Lender as confirmed by the Required Lenders.
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(d)
Notwithstanding anything in this Agreement to the contrary, the Prepayment Premium, the and Applicable Exit Fee and
the Exit Fee 2024 shall automatically
be due and payable upon the occurrence of the events set forth in Sections 2.5(b) and (c), respectively, in accordance
with the terms hereof as though such Indebtedness was voluntarily prepaid or repaid at such time and shall constitute part of
the Obligations, whether due to acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately,
upon the giving of notice to the Borrower in accordance with Section 9.1(a)(ii), or automatically, in accordance with Section
9.1(a)(i), by operation of law or otherwise (including, without limitation, on account of any bankruptcy filing or any other
Prepayment Event (including without limitation, a Bankruptcy Event occurring automatically upon the Borrower or any other Loan
Party becoming insolvent within the meaning of 11 U.S.C. §101(32)), in view of the impracticability and extreme difficulty
of ascertaining the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such acceleration, and
by mutual agreement of the parties as to a reasonable estimation and calculation of the lost profits or damages of the Lenders
as a result thereof. Any Applicable Exit Fee,
Exit Fee 2024 or Prepayment Premium (or, if required, each of the Prepayment Premiums) payable pursuant to the
Loan Documents shall be presumed to be the liquidated damages sustained by each Lender as the result of the applicable triggering
event and the Borrower agrees that each of the Exit Fee, the Exit Fee 2024,
the JS Exit Fee and the Prepayment Premium is reasonable under the circumstances currently existing. In the event the
Obligations are reinstated in connection with or following any applicable triggering event, it is understood and agreed that the
Obligations shall include any Prepayment Premium, or
Applicable Exit Fee or Exit Fee 2024, as applicable, payable in accordance
with the Loan Documents. The Prepayment Premium, and
Applicable Exit Fee and Exit Fee 2024,
as applicable, shall also be payable in the event the Obligations are satisfied or released by foreclosure (whether
by power of judicial proceeding), deed in lieu of foreclosure or by any other similar means. If the Prepayment Premium,
or Applicable Exit Fee or
Exit Fee 2024, as applicable, becomes due and payable pursuant to the Loan Documents and is not paid when due,
the Prepayment Premium, or Applicable Exit Fee or Exit Fee 2024, as applicable, shall be deemed to be principal
of the Term Loans and Obligations under the Loan Documents and interest shall accrue on the full principal amount of the Term
Loans (including on the Prepayment Premium, theApplicable
Exit Fee, the Exit Fee 2024 or any or
any June PIK Fee Amounts, July PIK Fee Amounts, or JS PIK Fee Amounts, as applicable) from and after the applicable
triggering event. In the event that any Prepayment Premium, or
Applicable Exit Fee or Exit Fee 2024, as applicable is determined
not to be due and payable by order of any court of competent jurisdiction, including, without limitation, by operation of the
Bankruptcy Code, despite such a triggering event having occurred, each of the Prepayment Premium, and
Applicable Exit Fee and Exit Fee 2024, as applicable, shall nonetheless
constitute Obligations under this Agreement and the Loan Documents for all purposes hereunder and thereunder. THE BORROWER HEREBY
WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE PREPAYMENT
PREMIUM, OR APPLICABLE
EXIT FEE OR EXIT FEE 2024, AS APPLICABLE, AND ANY DEFENSE TO PAYMENT, WHETHER
SUCH DEFENSE MAY BE BASED IN PUBLIC POLICY, AMBIGUITY, OR OTHERWISE. The Borrower, Agent and the Lenders acknowledge and agree
that any Prepayment Premium, or Applicable
Exit Fee or Exit Fee 2024, as applicable, due and payable in accordance
with the Loan Documents does not and shall not be deemed to constitute unmatured interest, whether under Section 502(b)(2) of
the Bankruptcy Code or otherwise. The Borrower further acknowledges and agrees, and waives any argument to the contrary, that
payment of such amount does not constitute a penalty or an otherwise unenforceable or invalid obligation. The parties have agreed
on the Prepayment Premium, the and
Applicable Exit Fee and the Exit Fee 2024 because it captures the
attractiveness of the Investment and the opportunity cost to each Lender for its capital Investment because each Lender is an
investment fund with limited ability to recycle capital and the Prepayment Premium, the
and Applicable Exit Fee and
the Exit Fee 2024, as applicable,
reflect the parties’ view on risk return. All parties to this Agreement agree (and each person that accepts or assumes an
interest in the Term Loans or Secured Obligations from time to time by their acceptance or assumption of such Term Loan or interest
through an Assignment Agreement agrees) that the Prepayment Premium, and
Applicable Exit Fee or Exit Fee 2024, as applicable, is not to be
construed as part of a headline interest rate, but instead compensation specifically reflecting the Lenders’ agreement to
forego receiving additional compensation, fees and pricing on the Closing Date, First Amendment Effective Date, and/or Fifth Amendment Effective Date, Sixth Amendment Effective
Date and/or Seventh Amendment Effective Date, as applicable, in return for the Borrower agreeing to pay the Prepayment
Premium, and Applicable
Exit Fee or Exit Fee 2024, as applicable, and that the payment of such amounts
reflect each Lender’s capital anticipated to be returned for the specific Investment of the Lender’s capital after
taking into account the relative risk of the Investment and agreement to receive a cash payment of that portion of their compensation
at a date later than the Closing Date, First Amendment Effective Date and/or,
Fifth Amendment Effective Date, Sixth Amendment Effective
Date and/or
Seventh Amendment Effective Date, as
applicable. The Borrower expressly acknowledges and agrees that, prior to executing this Agreement, it has had the opportunity
to review, evaluate, and negotiate the Prepayment Premium, the and
Applicable Exit Fee and the Exit Fee 2024, as applicable, and the
calculations thereof with its advisors, and that (i) the Prepayment Premium, the
and Applicable Exit Fee and
the Exit Fee 2024, as applicable, are each reasonable and each is the product of an arm’s-length transaction
between sophisticated business people, ably represented by counsel, (ii) the Prepayment Premium,
the and Applicable Exit Fee and
the Exit Fee 2024, as applicable, shall be payable notwithstanding the then prevailing market rates at the time
payment is made, (iii) there has been a course of conduct between the Lenders and the Loan Parties giving specific consideration
in this transaction for such agreement to pay the Prepayment Premium, the and
Applicable Exit Fee and the Exit Fee 2024, as applicable, (iv) the
Borrower shall be estopped hereafter from claiming differently than as agreed to in this Section 2.5, (v) the Borrower’s
agreement to pay the Prepayment Premium, the and
Applicable Exit Fee and the Exit Fee 2024, as applicable, is a material
inducement to the Lender’s agreement to fund the Term Loans, and (vi) the Prepayment Premium,
the and Applicable Exit Fee and
the Exit Fee 2024, as applicable, represent a good faith, reasonable estimate and calculation of the lost profits,
losses or other damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount
of damages to the Lenders or profits lost by the Lenders as a result of such any applicable triggering event.
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(e) Agent Fees. The Borrower agrees to pay Agent the fees set forth in the Agent Fee Letter.
(f) Lender Expenses. On the Closing Date, Borrower shall pay to Agent, for the benefit of the applicable Persons, (i) the fees set forth in the Commitment Letter and (ii) all unreimbursed Lender Expenses, which Agent may deduct from the Escrow Amount (as defined in the Escrow Agreement). Thereafter, all unreimbursed Lender Expenses shall be due and payable on demand. Agent shall allocate and disburse such payments to the Person having incurred such Lender Expenses.
2.6 | Prepayments. |
(a) | Mandatory Prepayments. |
(i)
Acceleration. If, at the election of Agent (acting at the direction of the Required Lenders) repayment of the Term
Loan is accelerated following the occurrence and continuance of an Event of Default, then Borrower shall immediately pay to Agent
for its benefit and the benefit of Lenders, as applicable (x) (i) all accrued and unpaid payments of interest with respect to
the Term Loan due prior to the date of prepayment, (ii) the outstanding principal amount of the Term Loan and (iii) all other
sums, if any, that shall have become due and payable hereunder with respect to the Term Loan, including all Secured Obligations
due hereunder plus (y) if applicable, the Prepayment Premium, Exit Fee
and/or Applicable Exit Fee 2024.
(ii) | [Reserved]. |
(iii) Recovery
Event Proceeds. Subject in all respects to the terms and conditions of and the rights of other secured parties set forth
in an Intercreditor Agreement, Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of the Recovery
Event Proceeds concurrently upon receipt of the same by Borrower, Parent or any Subsidiary of Parent and the same shall be
applied to (x) (i) all accrued and unpaid payments of interest with respect to the Term Loan due prior to the date of
prepayment, (ii) the outstanding principal amount of the Term Loan and (iii) all other sums, if any, that shall have become
due and payable hereunder with respect to the Term Loan, including all Obligations due hereunder plus (y) if
applicable, the Prepayment Premium, Exit Fee and/or Applicable Exit
Fee 2024; provided, however, that so long as no Default or
Event of Default shall have occurred and be continuing, such Recovery Event Proceeds shall not be required to be so applied
to the extent that Borrower notifies Agent prior to or concurrently with receipt of such Recovery Event Proceeds that the
same will be used (and to the extent Borrower, Parent or such Subsidiary actually uses such Recovery Event Proceeds) for the
replacement, substitution or restoration of the assets subject to the applicable Casualty Event or condemnation within one
hundred eighty (180) days after the receipt of such Recovery Event Proceeds; provided further that, if at any time
Borrower, Parent or any Subsidiary of Parent determines that such Recovery Event Proceeds or any portion thereof will not be
so used within one hundred eighty (180) days after the receipt of such Recovery Event Proceeds, such Recovery Event Proceeds
shall be immediately applied to prepay the Term Loans as required above.
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(iv)
Transfers and Involuntary Dispositions (Excluding the Used Motor Oil Asset Divestiture). Subject in all respects
to the terms and conditions of, and the rights of other secured parties set forth in, an Intercreditor Agreement, Borrower shall
(x) prepay the Term Loans in an aggregate amount equal to 100% of the Net Cash Proceeds received by Borrower, Parent or any Subsidiary
of Parent from all Transfers (other than Permitted Transfers and any Used Motor Oil Asset Divestiture) and Involuntary Dispositions
within five (5) Business Days of the date of such Transfer or Involuntary Disposition and shall be applied to (i) all accrued
and unpaid payments of interest with respect to the Term Loan due prior to the date of prepayment, (ii) the outstanding principal
amount of the Term Loan and (iii) all other sums, if any, that shall have become due and payable hereunder with respect to the
Term Loan, including all Obligations due hereunder plus (y) if applicable, the Prepayment Premium,
Exit Fee and/or Applicable Exit Fee 2024;
provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, such Net
Cash Proceeds shall not be required to be so applied at the election of the Borrower (as notified by the Borrower to the Agent)
to the extent Borrower, Parent or any Subsidiary of Parent reinvests all or any portion of such Net Cash Proceeds in operating
assets (other than current assets) used in the business within one hundred eighty (180) days after the receipt of such Net Cash
Proceeds; provided further that, if such Net Cash Proceeds shall have not been so reinvested, such Net Cash Proceeds shall
be immediately applied to prepay the Term Loans as required above.
(v) Used
Motor Oil Asset Divesture (Required Amounts). Subject to Section 2.6(d), Borrower shall (x) prepay (a) the Term
Loans in an aggregate amount equal to 50% of the Net Cash Proceeds received by Borrower, Parent or any Subsidiary of Parent
from any Used Motor Oil Asset Divestiture (such proceeds “UMO Sale Proceeds”) within five (5)
Business Days of the date of such Transfer; provided, however, that such Net Cash Proceeds shall be applied to
(i) all accrued and unpaid payments of interest with respect to the Term Loan due prior to the date of prepayment, (ii) the
outstanding principal amount of the Term Loan and (iii) all other sums, if any, that shall have become due and payable
hereunder with respect to the Term Loan, including all Obligations due hereunder plus (y) if applicable, the
Prepayment Premium, Exit Fee and/or Applicable
Exit Fee 2024.
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(vi) Used
Motor Oil Asset Divesture (Elective Amounts). Subject to Section 2.6(d), Borrower may, at its election, offer to
prepay (x) the Term Loans in an aggregate amount greater than the 50% of the UMO Sale Proceeds received by any Loan Party in
clause (v) above, within five (5) Business Days of the date of such Transfer; such excess Net Cash Proceeds shall be
applied to (i) all accrued and unpaid payments of interest with respect to the Term Loan due prior to the date of prepayment,
(ii) the outstanding principal amount of the Term Loan, (iii) all other sums, if any, that shall have become due and payable
hereunder with respect to the Term Loan, including all Obligations due hereunder and (y) shall immediately pay to Agent for
its benefit and the benefit of Lenders, if applicable, the Prepayment Premium, Exit Fee
and/or Applicable Exit Fee 2024.
(vii)
Change of Control. Upon a Change of Control, Borrower shall immediately offer to pay to Agent for its benefit and
the benefit of Lenders, as applicable (x) (i) all accrued and unpaid payments of interest with respect to the Term Loan due prior
to the date of prepayment, (ii) the outstanding principal amount of the Term Loan, and (iii) all other sums, if any, that shall
have become due and payable hereunder with respect to the Term Loan, including all Obligations due hereunder plus (y)
if applicable, the Prepayment Premium, Exit Fee and/or Applicable Exit Fee 2024.
(viii)
Certain Equity Issuances. Immediately upon the receipt by Borrower, Parent or any Subsidiary of Parent of the Net
Cash Proceeds of any Equity Issuance (other than Permitted Equity Issuances under clauses (a) through (e) of the definition thereof)
Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of such Net Cash Proceeds plus if applicable,
the Prepayment Premium, Exit Fee and/or Applicable
Exit Fee 2024; provided that, Net Cash Proceeds received in connection
with Permitted Equity Issuances under clause (f) of the definition thereof shall not be required to be so applied until at least
$35,000,000 of Net Cash Proceeds have been received by Borrower, Parent, or any Subsidiary of Parent, as applicable.
(ix)
Issuance of Indebtedness. Immediately upon the receipt by Borrower, Parent or any Subsidiary of Parent of the Net
Cash Proceeds of any Indebtedness (other than any Permitted Indebtedness), the Borrower shall prepay the Term Loans as hereinafter
provided in an aggregate amount equal to 100% of such Net Cash Proceeds plus if applicable, the Prepayment Premium,
Exit Fee and/or Applicable Exit Fee 2024.
(b) Voluntary
Prepayments. Borrower may voluntarily prepay the Term Loan in whole or in part, at any time; provided that each of
the following conditions is satisfied: Borrower pays to Agent for its benefit and the benefit of Lenders, as applicable, (i)
all accrued and unpaid payments of interest with respect to the Term Loan (or portion thereof subject to prepayment) due up
to and including the date of prepayment, (ii) the outstanding principal amount of the Term Loan being prepaid, and (iii) to
the extent that on any date occurring prior to the Maturity Date that payment or prepayment in full of the Secured
Obligations hereunder occurs (or is deemed to have occurred in the case of a Prepayment Event), the Borrower shall pay in
full all outstanding Secured Obligations (other than contingent indemnification obligations as to which no claim has been
asserted), which shall include for the avoidance of doubt, the payment, if applicable, of any Prepayment Premium, and
Applicable Exit Fee and Exit Fee 2024. Term Loans bearing
interest based on the Base Rate may be prepaid with same-day written notice, which is received by the Agent no later than
11:00 a.m. New York time on a Business Day, subject to the applicable Prepayment Premium, and
any Applicable Exit Fee and/or Exit
Fee 2024, as applicable.
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(c) |
(i) Each prepayment of the outstanding Term Loan pursuant to this Section 2.6 (other than Section 2.6(a)(viii) due to Permitted Equity Issuances under clause (f)) shall be applied to the principal repayment installments thereof in indirect order of maturity on a pro rata basis with accrued interest and fees pursuant to Section 2.7. Such prepayments shall be paid to the Lenders in accordance with their Pro Rata Percentage.
(ii)
Each prepayment pursuant to Section 2.6(a)(viii) due to Permitted Equity Issuances under clause (f) shall be applied
first to the accrued and unpaid interest on the 2023 Term Loans and, the 2024 Term Loans and the JS Loans, as applicable,
on a pro rata basis, second to the principal repayment installments of the 2023 Term Loans and, the 2024 Term Loans and the JS Loans, as applicable,
in indirect order of maturity on a pro rata basis with any applicable Applicable Exit Fee or Exit Fee 2024, as applicable, third to the accrued
and unpaid interest on the Additional Term Loans and Initial Term Loans on a pro rata basis and fourth the principal repayment
installments of the Additional Term Loans and Initial Term Loans in indirect order of maturity on a pro rata basis with any applicable
Prepayment Premium. Such prepayments shall be paid to the Lenders in accordance with their Pro Rata Percentage of the applicable
Term Loans.
(d) Xxxxxxxx
shall notify the Agent in writing (such writing to include, the subsection of this Section 2.6 pursuant to which such
prepayment is being made, the amount of such prepayment (including any Prepayment Premium) and the date of such prepayment)
of any prepayment required to be made pursuant to this Section 2.6 at least one (1) Business Day prior to the date of
such prepayment. Each Lender may elect (in its sole discretion) to decline all or any portion of its Pro Rata Percentage of
any mandatory prepayment pursuant to Section 2.6(a)(v) or Section 2.6(a)(vi) (such declined amounts the
“Declined Proceeds” and each such Lender, a “Declining Lender”) by giving notice of
such election in writing to the Agent by 11:00 a.m. New York time on the date that is one (1) Business Day after the date of
such Xxxxxx’s receipt of notice from the Agent regarding such prepayment. If a Lender fails to deliver a notice of
election declining receipt of its Pro Rata Percentage of such mandatory prepayment to the Agent within the time frame
specified above, any such failure will be deemed to constitute an acceptance of such Lender’s Pro Rata Percentage of
the total amount of such mandatory prepayment of Term Loans. Upon receipt by the Agent of such notice, the Agent shall
immediately notify the Borrower of such election. Any Declined Proceeds shall (1) first, be applied to prepay non-Declining
Lenders’ Pro Rata Percentage of the outstanding amount of the Term Loan (excluding the outstanding amount of the Term
Loan owed to the Declining Lenders) and (2) second, be retained by the Borrower; provided that non-Declining
Lenders’ may decline such additional amounts under clause (1) and such amounts will be retained by the Borrower and/or
applied by the Borrower in any manner not inconsistent with the terms of this Agreement. If the Borrower elects to
voluntarily prepay the outstanding amount of the Term Loan with any Declined Proceeds, then such prepayment shall be
accompanied by interest to, but not including, the prepayment date on the amount so prepaid and any applicable Prepayment
Premium, Exit Fee and/or Applicable Exit
Fee 2024.
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2.7 | Other Payment Terms. |
(a) Place and Manner. Except as otherwise provided herein. all payments to be made by Borrower under any Loan Document,
including payments of principal and accrued but unpaid interest hereunder, and all fees and Lender Expenses shall be made without
setoff or counterclaim from. All payments to be made by Borrower under any of the Loan Documents shall be made by 3:00 p.m. New
York time in immediately available funds by same day wire transfer to Agent, for its benefit and the benefit of Lenders, as applicable,
in accordance with the wire transfer instructions as provided in writing by Agent from time to time. Unless otherwise determined
by Agent (acting at the direction of the Required Lenders), all payments received from Borrower shall be applied first to any
outstanding fees and/or Lender Expenses, then to accrued and unpaid interest, then to principal. Any wire transfer or payment
received by Agent after 3:00 p.m. New York time may be deemed to have been received by Agent, in its sole discretion, as of the
opening of business on the immediately following Business Day. Any prepayment made pursuant to Section 2.6 (other than
Section 2.6(c)(ii)) shall be accompanied by interest to, but not including, the prepayment date on the amount so prepaid
and any applicable Prepayment Premium, Exit Fee and/or any
Applicable Exit Fee 2024.
(b) Date. Whenever any payment due hereunder shall fall due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of interest or fees, as the case may be.
(c) Default Rate. If an Event of Default has occurred and is continuing, at the election of the Required Lenders (or automatically if an Event of Default pursuant to Sections 8.1 or 8.9 is continuing), Borrower shall pay interest on the Obligations from the date of such Event of Default until such Event of Default is cured, at a per annum rate equal to the Default Rate. Notwithstanding anything to the contrary herein, (x) the Required Lenders may waive the Default Rate on all outstanding Term Loans if all underlying Event of Defaults could be waived by Required Lenders and (y) the Supermajority Lenders may waive the Default Rate on all outstanding Term Loans for any underlying Event of Default. All computations of interest shall be made on the basis of a year of 360 days, as the case may be, and actual days elapsed.
(d) Sharing of Payments, Etc. If any Lender, directly or through an Affiliate or branch office thereof, obtains any payment of any Obligation of any Loan Party (whether voluntary, involuntary or through the exercise of any right of setoff or the receipt of any Collateral or “proceeds” (as defined under the applicable Code) of Collateral) (and other than pursuant to Section 2.8, Section 14.1, Section 14.15, or any purchase option pursuant to any intercreditor agreement or any subordination agreement to which Agent is a party) and such payment exceeds the amount such Lender would have been entitled to receive if all payments had gone to, and been distributed by, Agent in accordance with the provisions of the Loan Documents, such Lender shall purchase for cash from other Lenders such participations in their Obligations as necessary for such Lender to share such excess payment with such Lenders to ensure such payment is applied as though it had been received by Agent and applied in accordance with this Agreement (or, if such application would then be at the discretion of the Borrower, applied to repay the Obligations in accordance herewith); provided, however, that (i) if such payment is rescinded or otherwise recovered from such Lender in whole or in part, such purchase shall be rescinded and the purchase price therefor shall be returned to such Lender without interest and (ii) such Lender shall, to the fullest extent permitted by applicable requirements of law, be able to exercise all its rights of payment (including the right of setoff) with respect to such participation as fully as if such Lender were the direct creditor of the applicable Loan Party in the amount of such participation.
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(e) | Defaulting Lenders. |
(i) Responsibility. The failure of any Defaulting Lender to make any Term Loan, or to fund any purchase of any participation required to be made or funded by hereunder, or to make any payment required by it under any Loan Document on the date specified therefor shall not relieve any other Lender of its obligations to make such loan, fund the purchase of any such participation, or make any other such required payment on such date, and neither Agent nor, other than as expressly set forth herein, any other Lender shall be responsible for the failure of any Defaulting Lender to make a loan, fund the purchase of a participation or make any other required payment under any Loan Document.
(ii) Voting Rights. Notwithstanding anything set forth herein to the contrary, including Section 14.4, a Defaulting Lender shall not have any voting or consent rights under or with respect to any Loan Document (or be, or have its Term Loans and Term Loan Commitments, included in the determination of “Required Lenders” or “Lenders directly and adversely affected” pursuant to Section 14.4) for any voting or consent rights under or with respect to any Loan Document, provided that (A) the Term Loan Commitment of a Defaulting Lender may not be increased, extended or reinstated, (B) the principal of a Defaulting Lender’s Term Loans may not be reduced or forgiven, and (C) the interest rate applicable to Obligations under the Loan Documents owing to a Defaulting Lender may not be reduced in such a manner that by its terms affects such Defaulting Lender more adversely than other Lenders, in each case, without the consent of such Defaulting Lender. Moreover, for the purposes of determining Required Lenders, the Term Loans and Term Loan Commitments held by Defaulting Lenders shall be excluded from the total Term Loans and Term Loan Commitments outstanding.
(iii) Borrower Payments to a Defaulting Lender. Agent shall be authorized to use all payments received by Agent for the benefit of any Defaulting Lender pursuant to this Agreement to pay in full the Aggregate Excess Funding Amount to the appropriate Lenders. Upon any such unfunded obligations owing by a Defaulting Lender becoming due and payable, Agent shall be authorized to use such cash collateral to make such payment on behalf of such Defaulting Lender. In the event that Agent is holding cash collateral of a Defaulting Lender that cures pursuant to clause (iv) below or ceases to be a Defaulting Lender pursuant to the definition of Defaulting Lender, Agent shall return the unused portion of such cash collateral to such Lender. The “Aggregate Excess Funding Amount” of a Defaulting Lender shall be the aggregate amount of all unpaid obligations owing by such Lender to Agent, and other Lenders under the Loan Documents.
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(iv) Cure. A Lender may cure its status as a Defaulting Lender under clause (a) of the definition of Defaulting Lender if such Lender fully pays to Agent, on behalf of the applicable Lenders the Aggregate Excess Funding Amount, plus all interest due thereon. Any such cure shall not relieve any Lender from liability for breaching its Contractual Obligations hereunder and shall not constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender.
2.8 | 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, any Lender;
(b) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(c) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Term Loans made by such Lender or participation in any such Term Loan;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Term Loan or of maintaining its obligation to make any such Term Loan, or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or other Recipient, the Borrower will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
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2.9 | Taxes. |
(a) Defined Terms: For purposes of this Section, the term “Applicable Law” includes FATCA.
(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by such Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.9(b)) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c) Payment of Other Taxes by Xxxxxxxx. The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by Xxxxxxxx. The Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Xxxxxx’s failure to comply with the provisions of Section 14.1(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this paragraph (e).
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(f) Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section, the Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.
(g) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Agent, at the time or times reasonably requested by the Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (g)(ii)(A), (ii)(B) and (ii)(D) of this Section) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax.
(B) Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement and from time to time thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is applicable
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E 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;
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(2) | executed copies of IRS Form W-8ECI; |
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8 BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed copies of any other form 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 Borrower or the Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent, such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to determine that such Xxxxxx has complied with such Xxxxxx’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do so.
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i) Survival. Each party’s obligations under this Section 2.9 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Term Loan Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
2.10 Term. This Agreement shall become effective on the Closing Date and shall continue in full force and effect for so long as any Obligations remain outstanding (other than inchoate indemnity obligations). Agent’s Lien on the Collateral shall remain in effect for so long as any Obligations are outstanding (other than inchoate indemnity obligations) and upon payment in full of all Obligations (other than inchoate indemnity obligations which are not the subject of an indemnity claim), Agent’s Lien on the Collateral shall terminate automatically. This Agreement may be terminated prior to the Maturity Date by Borrower, effective five (5) Business Days after written notice of termination is given to Agent and Lenders and upon receipt by Agent of payment of the Obligations (including, without limitation, the Prepayment Premium, if applicable) in full in cash (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement).
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2.11 | Issuance of Warrants. |
(a) On the Closing Date, in connection with (and as additional consideration for) the making of the Initial Term Loan by the Initial Lenders, Parent has issued to each Initial Lender (or, with respect to certain of the Initial Lenders, to such Initial Lender’s Affiliate or Approved Fund identified on Schedule A of the Warrant Agreement), the number of Initial Warrants set forth opposite the name of such Initial Lender (or such Initial Lender’s Affiliate or Approved Fund, as applicable) on Schedule A of the Warrant Agreement. The Initial Warrants are governed by and entitled to the benefits, and subject to the terms of, the Warrant Agreement.
(b) On the First Amendment Effective Date, in connection with (and as additional consideration for) the making of the Additional Term Loan by the Initial Lenders, Parent shall issue to each Initial Lender (or, with respect to certain of the Initial Lenders, to such Initial Lender’s Affiliate or Approved Fund identified on Schedule A of the Additional Warrant Agreement), the number of Additional Warrants set forth opposite the name of such Initial Lender (or such Initial Lender’s Affiliate or Approved Fund, as applicable) on Schedule A of the Additional Warrant Agreement. Upon issuance pursuant to this Section 2.11(b), the Additional Warrants shall be governed by and shall be entitled to the benefits, and subject to the terms, of the Additional Warrant Agreement.
(c) On the Fifth Amendment Effective Date, in connection with (and as additional consideration for) the making of the 2023 Term Loan by the 2023 Term Loan Lenders, Parent shall issue to each 2023 Term Loan Lender (or, with respect to certain of the 2023 Term Loan Lenders, to such 2023 Term Loan Lender’s Affiliate or Approved Fund identified on Schedule A of the 2023 Warrant Agreement), the number of 2023 Warrants set forth opposite the name of such 2023 Term Loan Lender (or such 2023 Term Loan Lender’s Affiliate or Approved Fund, as applicable) on Schedule A of the 2023 Warrant Agreement. Upon issuance pursuant to this Section 2.11(c), the 2023 Warrants shall be governed by and shall be entitled to the bene