FIFTH AMENDMENT TO CREDIT AGREEMENT

Exhibit 10.2

Execution Version

This FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) dated as of February 2, 2024, is among NGL ENERGY OPERATING LLC, a Delaware limited liability company (the “Company”), NGL ENERGY PARTNERS LP, a Delaware limited partnership (the “Parent”), each Guarantor party hereto, JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, together with its successors, the “Administrative Agent”) and as collateral agent (in such capacity, together with its successors, the “Collateral Agent”), and the Lenders party hereto.

Recitals

A.            WHEREAS, the Company, the Parent, the Administrative Agent, the Collateral Agent and the Lenders party thereto from time to time are parties to that certain Credit Agreement dated as of February 4, 2021 (as amended by that certain First Amendment to Credit Agreement, dated November 8, 2021, that certain Second Amendment to Credit Agreement, dated April 13, 2022, that certain Third Amendment to Credit Agreement, dated February 16, 2023, that certain Fourth Amendment to Credit Agreement, dated July 13, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”; the Existing Credit Agreement as amended by this Amendment and as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), pursuant to which the Lenders have agreed to make certain loans to, and extensions of credit on behalf of, the Company.

B.            WHEREAS, the Company intends to refinance its Secured 2026 Notes (as defined in the Existing Credit Agreement), the Unsecured 2025 Notes (as defined in the Existing Credit Agreement) and the Unsecured 2026 Notes (as defined in the Existing Credit Agreement) (such refinancing, the “Refinancing”) with cash on hand and the proceeds of (i) new senior secured notes due 2029, (ii) new senior secured notes due 2032 (clauses (i) and (ii), collectively, the “New Secured Notes”) and (iii) term loans incurred under a new $700.0 million “term loan B” credit facility (the “Term Loans” and, together with the New Secured Notes, the “Fixed Debt”).

C.            WHEREAS, the Company, the Parent, the Administrative Agent, the Lenders party hereto which are party to the Existing Credit Agreement (the “Existing Lenders”) and the Additional Lenders (as defined below) have agreed to amend certain provisions of the Existing Credit Agreement as more fully set forth herein, including, without limitation, to extend the Scheduled Termination Date under the Credit Agreement and to make certain changes related to the Fixed Debt.

D.            NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Section 1.         Defined Terms. Each capitalized term used herein but not otherwise defined herein has the meaning given to such term in the Credit Agreement.

Section 2.         Amendments. Effective as of the Fifth Amendment Effective Date (as defined below):

2.1            The Existing Credit Agreement is hereby amended in its entirety to read as set forth in its entirety to read as set forth in Annex A hereto.

2.2            Schedules 6.11, 6.12 and 6.22 to the Existing Credit Agreement are hereby amended (for the avoidance of doubt, from and after the Fifth Amendment Effective Date and without giving retroactive effect thereto) by replacing such Schedules with the applicable revised Schedules attached as Annex B hereto.

2.3            Exhibit I (Form of Compliance Certificate) to the Existing Credit Agreement is hereby amended (for the avoidance of doubt, from and after the Fifth Amendment Effective Date and without giving retroactive effect thereto) by replacing such Exhibit with the Exhibit attached as Annex C hereto.

2.4            The Pledge and Security Agreement (including all schedules thereto) is hereby amended in its entirety to read as set forth in Annex D hereto.

Section 3.         Additional Lenders. Pursuant to Sections 12.1 and 12.6 of the Credit Agreement, each of the Company, the Administrative Agent, each Issuing Lender and the Swingline Lender hereby consents to (a) allowing the undersigned additional lenders (the “Additional Lenders”) to become party to the Credit Agreement as Lenders and (b) the assignment and reallocation at par of certain of the Existing Lenders’ Revolving Credit Commitments, Revolving Credit Loans and participations in Letters of Credit as in effect immediately prior to the Fifth Amendment Effective Date (the “Assigned Interests”) such that after giving effect to such assignments and reallocations and taking into account any new money Revolving Credit Commitments of the Lenders, the Revolving Credit Commitment and Revolving Credit Commitment Percentage for each Lender shall equal those set forth opposite such Lender’s name on Schedule 1A hereto and such schedule shall replace and supersede Schedule 1A to the Existing Credit Agreement. With respect to the foregoing assignments and reallocations, upon the Fifth Amendment Effective Date, each Lender (including any Additional Lender) shall be deemed to have acquired its portion of the Assigned Interests allocated to it pursuant to the terms of an Assignment and Assumption attached as Exhibit A to the Credit Agreement as if each such Lender had executed an Assignment and Assumption with respect to such assignment and reallocation of Assigned Interests and such assignments and reallocations shall otherwise occur upon the Fifth Amendment Effective Date pursuant to mechanics reasonably determined by the Administrative Agent. On and after the Fifth Amendment Effective Date, each Additional Lender shall be a party to the Credit Agreement and have the rights and obligations of a Lender under the Credit Agreement, this Amendment and the other Loan Documents.

Section 4.         Conditions Precedent. This Amendment shall become effective on the date (such date, the “Fifth Amendment Effective Date”) when each of the following conditions is satisfied (or waived in accordance with Section 12.1 of the Credit Agreement):

4.1            The Administrative Agent shall have received (i) for the respective accounts of the Persons entitled to the same, all costs, expenses, fees and other compensation payable to the Lenders (including any Additional Lender), the Agents and the Arrangers on or prior to the Fifth Amendment Effective Date, in the case of expenses, to the extent invoiced to the Company at least one (1) Business Day prior to the Fifth Amendment Effective Date, including, without limitation, reasonable fees of one legal counsel to the Lenders and one local counsel in each appropriate jurisdiction, (ii) any fees and expenses required to be paid as of the Fifth Amendment Effective Date by Section 12.5(a), in the case of expenses, to the extent such expenses have been invoiced at least one (1) Business Day prior to the Closing Date and (iii) any fees and expenses required to be paid as of the Fifth Amendment Effective Date pursuant to that certain Fee Letter, dated as of December 11, 2023, between JPMorgan Chase Bank, N.A. and the Parent.

4.2            The Administrative Agent shall have received a counterpart of this Amendment signed by the Company, the Parent, each Guarantor, each Existing Lender and each Additional Lender (which, subject to Section 6.4 hereof and Section 12.8(b) of the Credit Agreement, may include any Electronic Signatures transmitted by telecopy, pdf or similar electronic transmission).

4.3            The Administrative Agent shall have received a certificate from a Responsible Officer of the Company certifying as to the satisfaction of the conditions contained in Sections 4.13, 4.14, 4.15 and 4.16 hereof.

4.4            The Administrative Agent shall have received solvency certificate in the form of Exhibit H to the Credit Agreement provided by the chief financial officer of the Parent.

4.5            The Administrative Agent and the Lenders shall have received the Borrowing Base Certificate (along with customary supporting documentation and supplemental reporting) most recently delivered or required to be delivered under the Existing Credit Agreement.

4.6            Each Lender that has timely requested a Note shall have received an executed Note.

4.7            The Administrative Agent shall have received a counterpart of the Canadian Pledge and Security Agreement substantially in the form attached as Annex E hereto signed by each Credit Party that is party thereto.

4.8            The Administrative Agent shall have received a secretary’s certificate executed and delivered by a Responsible Officer or secretary of the Parent, certifying as to each of the Credit Parties’ (A) officers’ incumbency appended thereto, (B) authorizing resolutions or consents appended thereto and (C) true and complete copies of Organization Documents, with the applicable insertions and attachments being reasonably satisfactory in form and substance to the Administrative Agent.

4.9            The Administrative Agent shall have received copies of certificates from the Secretary of State or other appropriate authority of such jurisdiction, evidencing good standing of the Credit Parties in their respective jurisdiction of incorporation.

4.10          (i) The Company and each Credit Party shall have provided the documentation and other information to the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and the Proceeds of Crime Act, in each case no later than three (3) days prior to the Fifth Amendment Effective Date to the extent reasonably requested by the Lenders at least ten (10) Business Days in advance of the Fifth Amendment Effective Date and (ii) to the extent the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) days prior to the Fifth Amendment Effective Date, any Lender that has requested, in a written notice to the Company at least ten (10) days prior to the Fifth Amendment Effective Date, a Beneficial Ownership Certification in relation to the Company shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Amendment, the condition set forth in this clause (ii) shall be deemed to be satisfied).

4.11          The Administrative Agent shall have received an opinion addressed to the Administrative Agent, the Collateral Agent and the Lenders of (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company and (B) certain other local counsel to the Credit Parties (including Stikeman Elliott LLP, Canadian counsel to the Company, Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxx LLP, Colorado counsel to the Company, McAfee & Xxxx, a Professional Corporation, Oklahoma counsel to the Company, Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxx, LLP, New Mexico counsel to the Company and Xxxx & Xxxxxxxx, PLLC, Wyoming counsel to the Company) in each case, in form and substance reasonably satisfactory to the Administrative Agent. Such opinions shall also cover such other matters incident to the transactions contemplated by this Amendment as the Administrative Agent shall reasonably require.

4.12          The Administrative Agent shall have received:

(a)            copies of reports from CT Corporation or another independent search service reasonably satisfactory to the Collateral Agent listing all effective financing statements, notices of tax, PBGC or judgment liens or similar notices that name any of the Company or any other Credit Party (under its present name and any previous name and, if requested by the Collateral Agent, under any trade names), as debtor or seller that are filed in the jurisdictions referred to in sub-clause (B) above (regardless of whether or not financing statements are then on file) or in any other jurisdiction having files which must be searched in order to determine fully the existence of the UCC security interests, PPSA financing statements, notices of the filing of federal tax Liens (filed pursuant to Section 6323 of the Code), Liens of the PBGC (filed pursuant to Section 4068 of ERISA) or judgment Liens on any Collateral, together with copies of such financing statements, notices of tax, PBGC or judgment Liens or similar notices (none of which shall cover the Collateral except to the extent evidencing Permitted Liens or for which the Collateral Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local Law) authenticated and authorized for filing); and

(b)            searches of ownership of and liens on intellectual property in the appropriate governmental offices and such patent, industrial design, trademark and/or copyright filings as may be requested by the Collateral Agent to the extent necessary or reasonably advisable to perfect the Collateral Agent’s security interest in intellectual property Collateral.

4.13          Each of the representations and warranties set forth in Section 6.2(d) hereof shall be true and correct on and as of the Fifth Amendment Effective Date.

4.14          No Default or Event of Default shall be in existence on the Fifth Amendment Effective Date after giving effect to any Loans to be made or Letter of Credits to be issued on the Fifth Amendment Effective Date.

4.15          The New Secured Notes shall have been issued and the Company shall have received the proceeds of Term Loans in a combined aggregate principal amount of at least $2,369,902,000, each on terms and pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and its counsel.

4.16          On the Fifth Amendment Effective Date, after giving effect to the transactions contemplated the Amendment, the issuance or incurrence of the Fixed Debt and the consummation of the Refinancing, the prepayment in full (or release from) all obligations under the Secured 2026 Notes (as defined in the Existing Credit Agreement), the Unsecured 2025 Notes (as defined in the Existing Credit Agreement) and the Unsecured 2026 Notes (as defined in the Existing Credit Agreement) shall have occurred.

4.17          All governmental and third party approvals necessary in connection with the entry into of this Amendment, the incurrence of the Fixed Debt and/or the consummation of the Refinancing (including shareholder approvals, if any) shall have been obtained on reasonably satisfactory terms and shall be in full force and effect.

4.18          The Administrative Agent shall have received an executed copy of the Intercreditor Agreement signed by each of the parties party thereto.

The Administrative Agent is hereby authorized and directed to declare this Amendment to be effective (and the Fifth Amendment Effective Date shall occur) when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 4 (or the waiver of such conditions as permitted in Section 12.1 of the Credit Agreement). Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes.

Section 5.         Real Estate Matters.

5.1            Post-Closing Real Estate Matters. Within two hundred seventy (270) days after the Fifth Amendment Effective Date (or such later date as may be agreed to by the Administrative Agent in its reasonable discretion), the Company shall, or shall cause the applicable Credit Party to, deliver the following with respect to each Mortgaged Property that is a Material Real Property Asset, each in form and substance reasonably acceptable to the Administrative Agent:

(a)            e-mail confirmation or other written correspondence in form reasonably satisfactory to the Collateral Agent (or its counsel) from local counsel in the jurisdiction in which the Mortgaged Property is located substantially to the effect that: (i) the recording of the existing Mortgage is the only filing or recording necessary to give constructive notice to third parties of the lien created by such Mortgage as security for the Obligations (as defined in the Mortgage), including the obligations evidenced by this Amendment and (ii) no other documents, instruments, filings, recordings, re-recordings, re-filings or other actions, including, without limitation, the payment of any mortgage recording taxes or similar taxes are necessary or appropriate under applicable law in order to maintain the continued enforceability, validity or priority of the lien created by such Mortgage as security for the Obligations, including the obligations evidenced by this Amendment; or

(b)           (i)             an amendment to each Mortgage (each, a “Mortgage Amendment,” collectively the “Mortgage Amendments”) duly executed and acknowledged by the applicable Credit Party, and in form for recording in the applicable recording office;

(ii)            if such Mortgaged Property has a Designated Value of $20,000,000 or more and is not an easement or right of way, executed legal opinions from counsel to the Company as to the enforceability of each Mortgage Amendment;

(iii)            if such Mortgaged Property has a Designated Value of $20,000,000 or more and is not an easement or a right of way, with respect to each Mortgage Amendment a date-down endorsement or similar title product to each existing title insurance policy insuring the Lien of each Mortgage (each a “Title Endorsement,” collectively, the “Title Endorsements”) insuring that such Mortgage, as amended by such Mortgage Amendment, is a valid and enforceable lien on such Mortgaged Property in favor of the Collateral Agent for the benefit of the Secured Parties free and clear of all Liens except Permitted Liens; provided, however, with respect to any such Mortgaged Property located in Texas, a title search and T-38 endorsement, to the extent available shall only be required;

(iv)            evidence reasonably acceptable to the Collateral Agent of payment by Company, if applicable, of all premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgage Amendments and issuance of the Title Endorsements; and

(v)            such affidavits, certificates, and instruments of indemnification (including a so-called “gap” indemnification) as shall be reasonably required to induce the title insurer to issue the Title Endorsements (if applicable).

5.2            Mortgage Releases. Effective as of the Fifth Amendment Effective Date, any Mortgaged Property that does not constitute Material Real Property (as such definition is amended by this Fifth Amendment) shall be automatically and without need for any further action by any Person be released from the Lien created by its respective Mortgage or Leasehold Mortgage. Within two hundred seventy (270) days after the Fifth Amendment Effective Date (or such later date as may be agreed by the Administrative Agent), the Collateral Agent shall (i) provide evidence of such release and termination conforming to all applicable local laws sufficient to release such Mortgage or Leasehold Mortgage from the records of the applicable recording office and (ii) be required to take such actions and execute such documents as may be required to give effect to the foregoing.

5.3            Secured 2026 Notes Releases. Within two hundred seventy (270) days after the Fifth Amendment Effective Date (or such later date as may be agreed by the Administrative Agent), the Administrative Agent shall have received evidence of the release and termination of all Liens in respect of the Secured 2026 Notes (as defined in the Existing Credit Agreement).

Section 6.         Miscellaneous.

6.1            Confirmation. All of the terms and provisions of the Credit Agreement, as amended by this Amendment, are, and shall remain, in full force and effect following the Fifth Amendment Effective Date.

6.2            Ratification and Affirmation; Representations and Warranties. Each of the Company, the Parent and each entity identified on the signature pages hereto as a “Guarantor” (collectively with the Company and the Parent, the “Pledgors”) hereby (a) acknowledges the terms of this Amendment and the Credit Agreement; (b) ratifies and affirms its obligations under, and acknowledges, renews and extends its continued liability under, the Credit Agreement and the other Credit Documents and agrees that the Credit Agreement and the other Credit Documents remain in full force and effect; (c) agrees that from and after the Fifth Amendment Effective Date (i) each reference to the Credit Agreement in the other Credit Documents shall be deemed to be a reference to the Credit Agreement, as amended by this Amendment and (ii) this Amendment does not constitute a novation of the Credit Agreement or any other Credit Document; and (d) represents and warrants to the Lenders that as of the date hereof, and immediately after giving effect to the terms of this Amendment, (i) each of the representations set forth in Article 6 of the Credit Agreement, or which are contained in any other Credit Document are, to the extent already qualified by materiality, true and correct in all respects, and, if not already so qualified, are true and correct in all material respects, on and as of the Fifth Amendment Effective Date as if made on and as of the Fifth Amendment Effective Date (unless stated to relate to a specific earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date) and (ii) no Default or Event of Default has occurred and is continuing on the Fifth Amendment Effective Date. As security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise), in full, of its Obligations, each of the Pledgors hereby assigns and pledges to the Collateral Agent and its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent and its successors and permitted assigns, for the benefit of the Secured Parties, a security interest in all right, title and interest in or to the Article 9 Collateral (as defined in the Pledge and Security Agreement) now owned or at any time hereafter acquired by it or in which it now has or at any time in the future may acquire any right, title or interest regardless of where located. Each Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time, in the sole discretion of the Collateral Agent, to file in any relevant jurisdiction any financing statements that contain a description of collateral that describes such property in any manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the collateral granted hereunder, including describing such property as “all assets, whether now owned or hereafter acquired” or “all personal property, whether now owned or hereafter acquired” or using words of similar effect.

6.3            Credit Document. This Amendment is a Credit Document.

6.4            Counterparts.

(a)            This Amendment may be executed by one or more of the parties to this Amendment in any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

(b)            Delivery of an executed counterpart of a signature page of this Amendment and/or any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Amendment and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Amendment or such Ancillary Document, as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Amendment and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be.

6.5            Integration. This Amendment, the Credit Agreement and the other Credit Documents represent the entire agreement of the Credit Parties, the Agents and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by any Agent or any Lender relative to the subject matter hereof or thereof not expressly set forth or referred to herein, in the Credit Agreement or in the other Credit Documents.

6.6            GOVERNING LAW; NO THIRD PARTIES; SUBMISSION TO JURISDICTION; WAIVERS. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT AND THE LOANS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Sections 12.10 and 12.11 of the Credit Agreement are hereby incorporated herein and apply hereto mutatis mutandis.

6.7            Successors and Assigns. The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted by the Credit Agreement.

6.8            Payment of Expenses. The Company agrees to pay all reasonable and documented out of pocket expenses incurred by the Administrative Agent and its Affiliates in connection with the preparation and administration of this Amendment and the other Credit Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) to the extent required under Section 12.5(a) of the Credit Agreement.

6.9            Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

6.10            No Waiver. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or any Lender under the Credit Agreement or any Credit Document, or constitute a waiver or amendment of any provision of the Credit Agreement or any Credit Document. Section 12.3 of the Credit Agreement remains in full force and effect and is hereby ratified and confirmed by the Company, the Parent and each Guarantor.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first written above.

COMPANY:	NGL ENERGY OPERATING LLC

	By:	/s/ Xxxxxxx X. Xxxxxx
	Name:	Xxxxxxx X. Xxxxxx
	Title:	Chief Financial Officer and Executive Vice President

PARENT:	NGL ENERGY PARTNERS LP By: NGL ENERGY HOLDINGS LLC, its General Partner

	By:	/s/ Xxxxxxx X. Xxxxxx
	Name:	Xxxxxxx X. Xxxxxx
	Title:	Chief Financial Officer and Executive Vice President

Fifth Amendment to Credit Agreement
Signature Page

GUARANTORS:	ANTICLINE DISPOSAL, LLC AWR DISPOSAL, LLC CENTENNIAL ENERGY, LLC CENTENNIAL GAS LIQUIDS ULC CHOYA OPERATING, LLC DISPOSALS OPERATING, LLC GGCOF HEP BLOCKER, LLC GGCOF HEP BLOCKER II, LLC GRAND MESA PIPELINE, LLC GSR NORTHEAST TERMINALS LLC HILLSTONE ENVIRONMENTAL PARTNERS, LLC NGL CRUDE XXXXXXX, LLC NGL CRUDE LOGISTICS, LLC NGL CRUDE TERMINALS, LLC NGL CRUDE TRANSPORTATION, LLC NGL DELAWARE BASIN HOLDINGS, LLC NGL ENERGY FINANCE CORP. NGL ENERGY GP LLC NGL LIQUIDS, LLC NGL MARINE, LLC NGL NORTH RANCH, LLC NGL RECYCLING SERVICES, LLC NGL SHARED SERVICES, LLC. NGL SUPPLY TERMINAL COMPANY, LLC NGL SUPPLY WHOLESALE, LLC NGL WATER PIPELINES, LLC NGL WATER SOLUTIONS, LLC NGL WATER SOLUTIONS DJ, LLC NGL WATER SOLUTIONS EAGLE FORD, LLC NGL WATER SOLUTIONS – ORLA SWD, LLC NGL WATER SOLUTIONS PERMIAN, LLC NGL WATER SOLUTIONS PRODUCT SERVICES, LLC

	By:	/s/ Xxxxxxx X. Xxxxxx
	Name:	Xxxxxxx X. Xxxxxx
	Title:	Chief Financial Officer and Executive Vice President

Fifth Amendment to Credit Agreement
Signature Page

GUARANTORS:	NGL SHARED SERVICES HOLDINGS, INC.

	By:	/s/ Xxxxxxx X. Xxxxxx
	Name:	Xxxxxxx X. Xxxxxx
	Title:	Chief Financial Officer and Vice President

	NGL SOUTH RANCH, INC.

	By:	/s/ Xxxxxxx X. Xxxxxx
	Name:	Xxxxxxx X. Xxxxxx
	Title:	Chief Financial Officer

Fifth Amendment to Credit Agreement
Signature Page

ADMINISTRATIVE AGENT, COLLATERAL AGENT, SWINGLINE LENDER, ISSUING LENDER AND A LENDER:	JPMORGAN CHASE BANK, N.A.


	By:	/s/ Xxxx Xxxxxx
	Name:	Xxxx Xxxxxx
	Title:	Authorized Officer

Fifth Amendment to Credit Agreement
Signature Page

LENDER:	BARCLAYS BANK PLC

	By:	/s/ Xxxxxx X. Xxxxxx
	Name:	Xxxxxx X. Xxxxxx
	Title:	Director

Fifth Amendment to Credit Agreement
Signature Page

LENDER:	Royal Bank of Canada

	By:	/s/ Xxx X. XxXxxxxxxxx
	Name:	Xxx X. XxXxxxxxxxx
	Title:	Authorized Signatory

Fifth Amendment to Credit Agreement
Signature Page

ISSUING LENDER AND LENDER:	THE TORONTO-DOMINION BANK, NEW YORK BRANCH

	By:	/s/ Xxxxxxxx Xxxxxxxx
	Name:	Xxxxxxxx Xxxxxxxx
	Title:	Authorized Signatory

Fifth Amendment to Credit Agreement
Signature Page

ISSUING LENDER AND LENDER:	XXXXX FARGO BANK, NATIONAL ASSOCIATION

	By:	/s/ Xxxxxxx Xxx
	Name:	Xxxxxxx Xxx
	Title:	Authorized Signatory

Fifth Amendment to Credit Agreement
Signature Page

ADDITIONAL LENDER:	Bank of America, N.A.

	By:	/s/ Xxxx Xxxxx
	Name:	Xxxx Xxxxx
	Title:	Vice President

Fifth Amendment to Credit Agreement
Signature Page

ADDITIONAL LENDER:	MUFG BANK, LTD.

	By:	/s/ Xxxxxx Xxx
	Name:	Xxxxxx Xxx
	Title:	Vice President

Fifth Amendment to Credit Agreement
Signature Page

ADDITIONAL LENDER:	TEXAS CAPITAL BANK

	By:	/s/ Xxxxxxxx Xxxxxxxxx
	Name:	Xxxxxxxx Xxxxxxxxx
	Title:	Director

Fifth Amendment to Credit Agreement
Signature Page

ANNEX A

CREDIT AGREEMENT

[Attached]

Annex A to Fifth Amendment to Credit Agreement, dated as of February 2, 2024

Dated as of February 4, 2021

NGL ENERGY OPERATING LLC,

as the Company,

NGL ENERGY PARTNERS LP,

as Parent,

THE FINANCIAL INSTITUTIONS PARTY HERETO AS LENDERS

and

JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent and an Issuing Lender

JPMORGAN CHASE BANK, N.A.,

BARCLAYS BANK PLC,

RBC CAPITAL MARKETS,¹

THE TORONTO-DOMINION BANK, NEW YORK BRANCH,

XXXXX FARGO BANK, NATIONAL ASSOCIATION,

BANK OF AMERICA, N.A. and

MUFG BANK, LTD.,

as Joint Lead Arrangers,

and

JPMORGAN CHASE BANK, N.A.,

BARCLAYS BANK PLC,

RBC CAPITAL MARKETS,

THE TORONTO-DOMINION BANK, NEW YORK BRANCH,

XXXXX FARGO BANK, NATIONAL ASSOCIATION,

BANK OF AMERICA, N.A. and

MUFG BANK, LTD

as Joint Bookrunners


	CREDIT AGREEMENT

¹RBC Capital Markets is a brand name for the capital markets business of Royal Bank of Canada and its affiliates.

Table of Contents

Page

1.	Definitions		1
	1.1	UCC Definitions	1
	1.2	Defined Terms	1
	1.3	Other Definitional Provisions	63
	1.4	Divisions	65
	1.5	Interest Rates; Benchmark Notifications	65
	1.6	Pro Forma Basis; Limited Condition Transactions.	65
	1.7	Performance.	68
	1.8	Additional Alternative Currencies	68
	1.9	Exchange Rates; Currency Equivalents	68
2.	Amount and Terms of Revolving Credit Commitments		68
	2.1	Revolving Credit Commitments	68
	2.2	Proceeds of Revolving Credit Loans	69
	2.3	Issuance of Letters of Credit	70
	2.4	Participating Interests	71
	2.5	Procedure for Opening Letters of Credit	72
	2.6	Payments in Respect of Letters of Credit	72
	2.7	Eligible Cash Account	73
	2.8	Protective Advances	74
	2.9	Swingline Loans	74
3.	Amount and Terms of Incremental Loans		75
	3.1	Requests for Incremental Loans	75
	3.2	Ranking and Other Provisions	76
	3.3	Notices; Lender Elections	76
	3.4	Incremental Facility Amendment	77
	3.5	Effective Date and Allocations	77
	3.6	Conditions to Effectiveness of Increase	77
	3.7	Effect of Incremental Facility Amendment	78
	3.8	Revolving Credit Commitment Increases	78
	3.9	Conflicting Provisions	79
4.	[RESERVED]		79

5.	General Provisions Applicable to Loans and Letters of Credit		79
	5.1	Procedure for Borrowing by the Company	79
	5.2	Repayment of Loans; Evidence of Debt	80
	5.3	Conversion and Continuation Options	81
	5.4	Changes of Commitment Amounts	82
	5.5	Optional Prepayments	83
	5.6	Mandatory Prepayments	83
	5.7	Interest Rates and Payment Dates	84
	5.8	Computation of Interest and Fees	85
	5.9	Commitment Fees	86
	5.10	Certain Fees	86
	5.11	Letter of Credit Fees	86
	5.12	Letter of Credit Reserves	87
	5.13	Further Assurances	88
	5.14	Obligations Absolute	88
	5.15	Assignments	88
	5.16	Participations	89
	5.17	Inability to Determine Interest Rate for Term Benchmark Loans and Alternate Interest Rate	89
	5.18	Pro Rata Treatment and Payments	92
	5.19	Illegality	95
	5.20	Requirements of Law	95
	5.21	Break Funding Payments	97
	5.22	Replacement of Lenders	98
	5.23	Taxes	98
	5.24	Defaulting Lenders	103
	5.25	Accounts; Cash Dominion	105
6.	Representations and Warranties		106
	6.1	Corporate Existence; Compliance with Law	106
	6.2	Corporate Power; Authorization	106
	6.3	Enforceable Obligations	107
	6.4	No Conflict with Law or Contractual Obligations	107
	6.5	No Material Litigation	107
	6.6	Borrowing Base Certificate	107
	6.7	Investment Company Act	108

	6.8	Federal Reserve Regulations	108
	6.9	No Default	108
	6.10	Taxes	108
	6.11	Subsidiaries	109
	6.12	Ownership of Property; Liens	109
	6.13	ERISA; Canadian Pension Plans	109
	6.14	Environmental Matters	110
	6.15	Accuracy and Completeness of Financial Statements	110
	6.16	Absence of Undisclosed Liabilities	110
	6.17	No Material Adverse Effect	111
	6.18	Solvency	111
	6.19	Intellectual Property	111
	6.20	Creation and Perfection of Security Interests	111
	6.21	Accuracy and Completeness of Disclosure	113
	6.22	Insurance	113
	6.23	Anti-Corruption Laws and Sanctions	114
	6.24	Patriot Act and Proceeds of Crime Act	114
	6.25	Burdensome Restrictions	114
	6.26	Labor Matters	114
	6.27	Qualified Eligible Contract Participant	115
	6.28	Affected Financial Institutions	115
7.	Conditions Precedent		115
	7.1	Conditions to Closing Date	115
	7.2	Conditions to All Loans and Letters of Credit	120
8.	Affirmative Covenants		120
	8.1	Financial Statements	120
	8.2	Certificates; Other Information	123
	8.3	Payment of Other Obligations	125
	8.4	Continuation of Business and Maintenance of Existence and Material Rights and Privileges	125
	8.5	Compliance with All Applicable Laws and Regulations and Material Contractual Obligations	126
	8.6	Maintenance of Property; Insurance	126
	8.7	Maintenance of Books and Records	126
	8.8	Right of the Lenders to Inspect Property and Books and Records	126

iii

	8.9	Notices	127
	8.10	Subsidiary Guaranties and Collateral	128
	8.11	Compliance with Environmental Laws	135
	8.12	Field Examinations	135
	8.13	Further Assurances	136
	8.14	Depositary Banks	136
	8.15	Anti-Corruption; Sanctions	136
	8.16	Accuracy of Information	136
	8.17	[Reserved]	137
	8.18	Keepwell	137
	8.19	Designation of Unrestricted Subsidiaries	137
	8.20	Post-Closing Covenants	138
9.	Negative Covenants		138
	9.1	Financial Covenant	138
	9.2	Indebtedness	139
	9.3	Limitation on Liens	142
	9.4	Use of Proceeds	145
	9.5	Prohibition on Fundamental Changes	146
	9.6	Prohibition on Sale of Assets	146
	9.7	Limitation on Investments, Loans and Advances	148
	9.8	Amendments to Documents	150
	9.9	Restricted Payments	150
	9.10	Transaction with Affiliates	152
	9.11	Swap Contracts	152
	9.12	Restricted Indebtedness	152
	9.13	Fiscal Year	153
	9.14	Restrictive Agreements	153
	9.15	Limitation on Guarantees	154
	9.16	Sale and Leaseback Transactions	154
	9.17	Unrestricted Subsidiaries and Joint Ventures	154
	9.18	Activities of the Parent	154
	9.19	Layering	155
	9.20	Canadian Pension Plans	155
	9.21	Independence of Covenants	155

10.	Events of Default		156
	10.1	Events of Default	156
11.	The Administrative Agent		160
	11.1	Authorization and Action	160
	11.2	Administrative Agent’s Reliance, Limitation of Liability, Etc.	163
	11.3	Posting of Communications	164
	11.4	The Administrative Agent Individually	166
	11.5	Successor Administrative Agent	166
	11.6	Acknowledgements of Xxxxxxx and Issuing Lenders	167
	11.7	Collateral Matters	168
	11.8	Credit Bidding	169
	11.9	Certain ERISA Matters	170
12.	Miscellaneous		172
	12.1	Amendments and Waivers	172
	12.2	Notices	174
	12.3	No Waiver; Cumulative Remedies	176
	12.4	Survival	176
	12.5	Expenses, Limitation of Liability, Indemnity, Etc.	176
	12.6	Successors and Assigns; Participations	178
	12.7	Right of Setoff	182
	12.8	Counterparts	183
	12.9	Integration	184
	12.10	GOVERNING LAW; NO THIRD PARTY RIGHTS	184
	12.11	SUBMISSION TO JURISDICTION; WAIVERS	184
	12.12	Acknowledgements	186
	12.13	Confidentiality	187
	12.14	Patriot Act	188
	12.15	[Reserved]	188
	12.16	Severability	188
	12.17	Acknowledgment and Consent to Bail-In of Affected Financial Institutions	188
	12.18	Acknowledgement Regarding Any Supported QFCs	189
	12.19	Canadian Anti-Money Laundering Legislation	190
	12.20	Judgment Currency	190
	12.21	Intercreditor Agreement	191

SCHEDULES:
Schedule 1A	—	Commitment Amounts
Schedule 1B	—	Existing Money Market Funds
Schedule 1C	—	Eligible Carriers
Schedule 1D	—	Risk Management Policy
Schedule 6.11	—	Subsidiaries
Schedule 6.12	—	Real Property
Schedule 6.20	—	Filings
Schedule 6.22	—	Insurance
Schedule 9.2(h)	—	Indebtedness
Schedule 9.2(k)	—	Contingent Obligations
Schedule 9.3	—	Liens
Schedule 9.7	—	Investments, Loans and Advances
Schedule 9.10	—	Transaction with Affiliates
Schedule 9.14	—	Restrictive Agreements

EXHIBITS:
Exhibit A	—	Form of Assignment and Assumption
Exhibit B	—	Form of Borrowing Base Certificate
Exhibit C-1	—	Form of Canadian Pledge and Security Agreement
Exhibit C-2	—	Form of Pledge and Security Agreement
Exhibit D	—	Form of Credit Party Accession Agreement
Exhibit E	—	Form of Guaranty
Exhibit F	—	Form of U.S. Tax Compliance Certificates
Exhibit G	—	Form of Responsible Officer’s Certificate
Exhibit H	—	Form of Solvency Certificate
Exhibit I	—	Form of Compliance Certificates

CREDIT AGREEMENT, dated as of February 4, 2021 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time after the date hereof, this “Agreement”), among NGL ENERGY OPERATING LLC, a Delaware limited liability company (the “Company”), NGL ENERGY PARTNERS LP, a Delaware limited partnership (the “Parent”), the several Lenders from time to time parties hereto, and JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders and as Collateral Agent (as defined below).

WHEREAS, the Company has requested that the Lenders provide asset-based loans and commitments to the Company in an aggregate amount of $600,000,000 as of the Fifth Amendment Effective Date;

NOW THEREFORE, in consideration of these premises and for other good and valuable consideration, effective as of the Closing Date (as defined below), the parties do hereby agree as follows:

Definitions

1.1

UCC Definitions

The following terms which are defined in the UCC and/or the PPSA (each as defined below) are used herein as so defined: Account, Chattel Paper, Commercial Tort Claim, Commodity Account, Deposit Account, Document (which shall include Document of Title, as defined in the PPSA), Equipment, General Intangible (which shall include Intangibles, as defined in the PPSA), Goods, Instrument, Inventory, Investment Property, Letter of Credit, Letter-of-Credit Rights, Record, Securities Account and Supporting Obligations; provided that, if such terms are defined both in the UCC and the PPSA, in respect of the Canadian Credit Parties, such terms shall have the meaning ascribed to them in the PPSA. Other terms defined in the UCC or the PPSA which are not otherwise defined in this Agreement or in any other Credit Document, as applicable, are used herein and/or therein as defined in the UCC or the PPSA, as the context requires.

1.2

Defined Terms

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

“ABL Priority Collateral” has the meaning set forth in the Intercreditor Agreement.

“ABR” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that, for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 A.M. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the ABR due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the ABR is being used as an alternate rate of interest pursuant to Section 5.17, then the ABR shall be the greater of clause (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the ABR shall be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.

“ABR Loans” means Loans bearing interest based upon the ABR.

“Account Debtor” means each Person obligated on an Account.

“Additional Assets” means (a) any property or assets (other than Indebtedness and Equity Interests) to be used by the Parent, the Borrower or a Restricted Subsidiary in a Permitted Business; (b) the Equity Interests of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Equity Interests by the Parent, the Borrower or a Restricted Subsidiary; or (c) outstanding Equity Interests of any Restricted Subsidiary held by Persons other than Affiliates; provided that all the Equity Interests of such Restricted Subsidiary held by the Parent, the Borrower or a Restricted Subsidiary shall entitle the Parent, the Borrower or such Restricted Subsidiary to not less than a pro rata portion of all dividends or other distributions made by such Restricted Subsidiary upon any of such Equity Interests; provided, further, however, that, in the case of clauses (b) and (c), such Restricted Subsidiary is primarily engaged in a Permitted Business.

“Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) the Daily Simple SOFR, plus (b) 0.10%; provided that if Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.

“Adjusted Term SOFR Rate” means, for any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for purposes of this Agreement.

“Adjustment Date” has the meaning specified in the definition of “Applicable Margin”.

“Administrative Agent” means JPMCB, in its capacity as administrative agent under any of the Credit Documents, or any permitted successor administrative agent.

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affiliate” of any Person means any Person (other than a Subsidiary) which, directly or indirectly, is in control of, is controlled by, or is under common control with such Person. For purposes of this definition, control of a Person shall mean the power, direct or indirect, either (i) to vote 10% or more of the securities having ordinary voting power for the election of directors of such Person or (ii) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

“Agent-Related Person” has the meaning assigned to it in Section 12.5(d).

“Agents” means a collective reference to the Administrative Agent and the Collateral Agent.

“Aggregate Revolving Credit Extensions of Credit” means, at any particular time, the sum of (i) the aggregate then outstanding principal amount of the Revolving Credit Loans, (ii) the aggregate amount then available to be drawn under all outstanding Letters of Credit and (iii) the aggregate amount of all Revolving L/C Obligations.

“Agreement” has the meaning specified in the preamble hereof.

“Ancillary Document” has the meaning assigned to it in Section 12.8(b).

“Anti-Corruption Laws” means all laws, rules, ordinances and regulations of any jurisdiction applicable to the Parent, the Company or any of its Subsidiaries from time to time concerning or relating to bribery, money laundering or corruption.

“Applicable Level” means each level under the column titled “Applicable Level” within the definition of “Applicable Margin”.

“Applicable Margin” means the percentage determined in accordance with the following pricing grid, provided that for each day during the period from the Fifth Amendment Effective Date to and including the last day of the fiscal quarter ending March 31, 2024, the rate per annum shall be the rate set forth in Applicable Level III, and thereafter, the rate per annum for the relevant Type of such Loan shall be the rate set forth below opposite the Applicable Level as calculated on each Adjustment Date:

Applicable Level	Fixed Charge Coverage Ratio	Consolidated Net Leverage Ratio	ABR (for ABR Loans)	Term Benchmark and RFR (for Term Benchmark Loans and RFR Loans)
I	≥ 1.75 to 1.00	> 3.50 to 1.00 or ≤ 0.00 to 1.00	1.50%	2.50%
II	≥ 1.75 to 1.00	< 3.50 to 1.00 and > 0.00 to 1.00	1.25%	2.25%
III	> 1.50 to 1.00 but < 1.75 to 1.00	> 3.50 to 1.00 or ≤ 0.00 to 1.00	1.75%	2.75%
IV	> 1.50 to 1.00 but < 1.75 to 1.00	< 3.50 to 1.00 and > 0.00 to 1.00	1.50%	2.50%
V	< 1.50 to 1.00	> 3.50 to 1.00 or ≤ 0.00 to 1.00	2.00%	3.00%
VI	< 1.50 to 1.00	< 3.50 to 1.00 and > 0.00 to 1.00	1.75%	2.75%

The Applicable Margin shall be determined in accordance with the foregoing grid as of the end of each fiscal quarter of the Company based upon the Fixed Charge Coverage Ratio and the Consolidated Net Leverage Ratio as calculated in the Compliance Certificate delivered with the most recent annual or quarterly financial statements of the Company pursuant to Section 8.2(b), with any changes to the Applicable Margin resulting from changes in the Fixed Charge Coverage Ratio or the Consolidated Net Leverage Ratio to be effective on the date that such Compliance Certificate is delivered (the “Adjustment Date”); provided, however, that:

(i) in the event that the Compliance Certificate referred to in Section 8.2(b) is not delivered when due, then during the period from the date upon which such Compliance Certificate was required to be delivered, until the date upon which the Compliance Certificate is actually delivered, the Applicable Level shall be Applicable Level V;

(ii) in the event the financial statements or Compliance Certificate referred to in Section 8.2(b) are proven to have been incorrect and the Applicable Level would have been higher than the Applicable Level actually applied, then the Applicable Level for the relevant period shall be adjusted retroactively to reflect the level which would have applied for such period based on the corrected financial statements or Compliance Certificate, and any additional interest owing as a result of such readjustment shall be payable within one (1) Business Day after the Company receives notice that such additional interest is due; and

(iii) at all times during which a Default or an Event of Default shall have occurred and is continuing, the Applicable Level shall be Applicable Level V.

“Applicable Parties” has the meaning assigned to it in Section 11.3(c).

“Approved Electronic Platform” has the meaning assigned to it in Section 11.3(a).

“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) a Lender Affiliate or (c) an entity or an affiliate of an entity that administers or manages a Lender.

“Arrangers” means JPMCB, Barclays Bank Plc, RBC Capital Markets, The Toronto-Dominion Bank, New York Branch, Xxxxx Fargo Bank, National Association, Bank of America, N.A. and MUFG Bank, Ltd. in their capacities as Joint Lead Arrangers and/or Joint Bookrunners.

“Asset Sale” means any sale, sale-leaseback, assignment, conveyance, transfer or other disposition by the Parent, the Company or any Restricted Subsidiary of any of its property or assets, including the stock of any Restricted Subsidiary.

“Asset Sale Reserve Account” shall have the meaning assigned to such term in the Pledge and Security Agreement.

“Asset Sale Reserve Period” means, with respect to any Fixed Debt Priority Collateral Prepayment Event, the period commencing on the date of deposit of any Net Proceeds into the Asset Sale Reserve Account and ending on the earlier of (a) the date on which no Cash Dominion Event is continuing and (b) the date that is 365 days after the applicable Fixed Debt Priority Collateral Prepayment Event (provided that if the Parent or any of its Restricted Subsidiaries enters into a written agreement committing it to reinvest such Net Proceeds after such 365-day-period as permitted by the Fixed Debt Documents, then such 365-day-period period shall be extended for an additional period not to exceed 180 days).

“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit A hereto or any other form (including electronic records generated by the use of an electronic platform) accepted by the Administrative Agent in its sole discretion.

“Attached RIN” means a RIN generated in accordance with RFS that is associated with a specific gallon of biofuel.

“Auto-Extension Letter of Credit” has the meaning assigned to it in Section 2.3(c).

“Availability” means, at any time, an amount equal to (a) the Line Cap at such time, minus (b) the sum of the aggregate outstanding amount of borrowings under the Revolving Credit Facility plus the undrawn amount of outstanding Letters of Credit under the Revolving Credit Facility.

“Availability Trigger” means Availability is less than the greater of (i) $65,000,000 and (ii) 12.5% of the Line Cap.

“Available Revolving Credit Commitment” means, as to any Lender, at a particular time, an amount equal to the excess, if any, of (i) the amount of such Lender’s Revolving Credit Commitment at such time less (ii) the sum of (A) the aggregate then outstanding principal amount of all Revolving Credit Loans made by such Lender pursuant to Section 2.1, (B) such Lender's L/C Participating Interest in the aggregate amount then available to be drawn under all outstanding Letters of Credit, (C) such Lender’s Revolving Credit Commitment Percentage of the aggregate amount of all Revolving L/C Obligations, (D) such Lender’s Revolving Credit Commitment Percentage of the aggregate then outstanding principal amount at such time of all Protective Advances and (E) such Xxxxxx’s Revolving Credit Commitment Percentage of the aggregate Swingline Exposure; collectively, as to all the Lenders, the “Available Revolving Credit Commitments.”

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of Section 5.17.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of any Affected Financial Institution.

“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, interim receiver, monitor, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets, or permits such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

“Benchmark” means, initially, with respect to any (a) RFR Loan, the Daily Simple SOFR or (b) Term Benchmark Loan, the Term SOFR Rate; provided that if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to the Daily Simple SOFR or the Term SOFR Rate, as applicable, or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 5.17.

“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

(1) the Adjusted Daily Simple SOFR;

(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Company as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar-denominated syndicated credit facilities at such time in the United States and (b) the related Benchmark Replacement Adjustment.

If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Credit Documents.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Company for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar-denominated syndicated credit facilities at such time.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day”, the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Credit Documents).

“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 5.17 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 5.17.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

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

“Borrowing Base” means, at any time, an amount equal to the sum of the following:

(i) 100% of each Credit Party’s Eligible Cash Collateral (subject to an aggregate cap of $25,000,000 at any time and excluding, for the avoidance of doubt, any cash or Cash Equivalents contained in the Material Debt Reserve Account), plus

(ii) 90% of each Credit Party’s Eligible IG Accounts, plus

(iii) 90% of each Credit Party’s Net Liquidating Value in Eligible Futures Accounts (subject to an aggregate cap of $25,000,000 at any time); plus

(iv) 85% of each Credit Party’s Eligible Non-IG Accounts, plus

(v) 80% of the Market Value of Eligible Inventory (other than Eligible Railcar Inventory) at such time, plus

(vi) 80% of the Market Value of Eligible Railcar Inventory at such time (subject to an aggregate cap of $25,000,000 at any time), plus

(vii) Subject to an aggregate cap of $50,000,000, 80% of the difference between (A) the amount available to be drawn under all Product Inventory Letters of Credit and (B) the aggregate outstanding amounts payable by the Credit Parties to the transporters or suppliers of Product Inventory that could be drawn under all Product Inventory Letters of Credit, minus

(viii) Reserves.

The Administrative Agent may, in its Permitted Discretion, establish, modify or eliminate Reserves in accordance with the definition of Reserves, with any such changes to be effective three (3) Business Days after delivery of notice thereof to the Company and the Lenders; provided that the Company may not obtain any new Revolving Credit Loans or Letters of Credit to the extent that such Revolving Credit Loan or Letter of Credit would cause the Aggregate Revolving Credit Extensions of Credit to exceed the Line Cap after giving effect to the establishment, modification or elimination of such Reserve as set forth in such notice. The Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to and in accordance with Section 8.2(f).

“Borrowing Base Certificate” means a certificate by a Responsible Officer of the Company, substantially in the form of Exhibit B (or such other form as may be agreed between the Company and the Administrative Agent) setting forth the calculation of the Borrowing Base, including a calculation of each component thereof (including, to the extent the Company has received notice of any such Reserve from the Administrative Agent, any of the Reserves required to be maintained for purposes of calculation of the Borrowing Base), all in such detail as shall be satisfactory to the Administrative Agent in its Permitted Discretion. All calculations of the Borrowing Base in connection with the preparation of any Borrowing Base Certificate shall be made by the Company and certified to the Administrative Agent.

“Borrowing Base Certification Date” means each date on which a Borrowing Base Certificate is delivered to the Administrative Agent pursuant to Section 8.2(f).

“Borrowing Date” means any Business Day specified in a notice pursuant to (i) Section 5.1 as a date on which the Company requests the Lenders to make Revolving Credit Loans or Incremental Revolving Credit Loans hereunder or (ii) Section 2.5 as a date on which the Company requests the Issuing Lender to issue a Letter of Credit hereunder.

“Burdensome Restrictions” means any consensual encumbrance or restriction of the type described in clause (a) or (b) of Section 9.14.

“Business Day” means any day (other than a Saturday or a Sunday) on which commercial banks in New York City are authorized or required by law to remain opened; provided that, in relation to RFR Loans and Term Benchmark Loans and any interest rate settings, fundings, disbursements, settlements or payments of any such RFR Loans and Term Benchmark Loan, or any other dealings of such RFR Loans and Term Benchmark Loan, any such day that is only an U.S. Government Securities Business Day.

“Canadian Blocked Person” means any Person that is a “designated person”, “politically exposed foreign person” or “terrorist group” as described in any applicable Canadian laws, regulations or orders governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures, including the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any related regulations.

“Canadian Credit Party” means any Subsidiary of the Company which is organized under the laws of Canada or any province or territory thereof that the Company shall elect to add as a Guarantor in its discretion.

“Canadian Defined Benefit Plan” means a Canadian Pension Plan, which contains a “defined benefit provision,” as defined in subsection 147.1(1) of the Income Tax Act (Canada).

“Canadian Pension Event” means (a) the filing of a notice of intent to terminate in whole or in part a Canadian Defined Benefit Plan or the treatment of a Canadian Defined Benefit Plan amendment as a termination or partial termination, where the wind-up valuation of such Canadian Defined Benefit Plan’s liabilities would, or could reasonably be expected to, exceed the wind-up valuation of such Canadian Defined Benefit Plan’s assets; (c) the institution of proceedings by any Governmental Authority to terminate in whole or in part a Canadian Defined Benefit Plan, where the wind-up valuation of such Canadian Defined Benefit Plan’s liabilities would, or could reasonably be expected to, exceed the wind-up valuation of such Canadian Defined Benefit Plan’s assets; (d) the institution of proceedings by any Governmental Authority to have a trustee appointed to administer a Canadian Defined Benefit Plan; or (d) any other event or condition which might constitute grounds for the termination of, winding up or partial termination of winding up or the appointment of trustee to administer, any Canadian Defined Benefit Plan, a Canadian Defined Benefit Plan amendment as a termination or partial termination, where the wind-up valuation of such Canadian Defined Benefit Plan’s liabilities would, or could reasonably be expected to, exceed the wind-up valuation of such Canadian Defined Benefit Plan’s assets.

“Canadian Pension Plan” means a pension plan that is covered by the applicable pension standards laws of any jurisdiction in Canada including the Employment Pension Plans Act (Alberta), the Pension Benefits Act (Ontario) and the Income Tax Act (Canada) and that is maintained or sponsored by a Credit Party for employees.

“Canadian Pledge and Security Agreement” means the Amended and Restated Canadian Pledge and Security Agreement dated as of February 2, 2024, among the Canadian Credit Parties from time to time party thereto and the Collateral Agent for the ratable benefit of the Secured Parties, a copy of which is attached as Exhibit C-1 hereto, as well as the Deed of Hypothec dated as of February 15, 2021, by and between Centennial Gas Liquids ULC and the Collateral Agent, in its capacity as hypothecary representative, in each case as the same may be amended, modified or supplemented in accordance with its terms from time to time.

“Canadian Priority Payable Reserve” means reserves established by the Administrative Agent in its Permitted Discretion in respect of (but without duplication of any other Reserve): (a) amounts past due and owing or in respect of which any Canadian Credit Party has an obligation to remit to a Governmental Authority or other Person pursuant to any applicable law, rule or regulation, with respect to (i) goods and services taxes, sales taxes, employee income taxes, municipal taxes and other taxes payable or to be remitted or withheld; (ii) workers’ compensation or employment insurance; (iii) vacation or holiday pay; and (iv) other like charges and demands, in each case, to the extent that any Governmental Authority or other Person may claim a Lien, trust or other claim or Lien ranking or which would reasonably be expected to rank in priority to or pari passu with one or more of the Liens granted in the other Credit Documents; and (b) the aggregate amount of any other liabilities of any Canadian Credit Party (i) in respect of which a trust or deemed trust has been imposed or may reasonably be likely to be imposed on any Collateral to provide for payment, (ii) in respect of rights or claims of suppliers under section 81.1 of the Bankruptcy and Insolvency Act (Canada), (iii) in respect of pension fund obligations, including in respect of unpaid or unremitted pension plan contributions, amounts representing any unfunded liability, solvency deficiency or wind-up deficiency whether or not due with respect to a Canadian Pension Plan (including “normal cost”, “special payments” and any other payments in respect of any funding deficiency or shortfall), and (iv) which are secured by a Lien, right, right or claim on any Collateral (including, without limitation, in respect of wages, salaries, commissions, vacation pay, or other compensation or amounts (including severance pay) payable under the Wage Earner Protection Program Act (Canada), the Bankruptcy and Insolvency Act (Canada) or the Companies’ Creditors Arrangement Act (Canada)), in each case to the extent that, pursuant to any applicable Law, such Lien, trust, right or claim ranks or, in the Permitted Discretion of the Agent, could reasonably be expected to rank in priority to or pari passu with one or more of the Liens granted in the Credit Documents.

“Capital Expenditures” means, for any period, without duplication, all amounts or commitments to expend money for any purchase or acquisition of assets that would, in accordance with GAAP, be classified as additions to property, plant and equipment and other capital expenditures of the Credit Parties for such period.

“Capital Lease” means, of any Person, any lease of (or other arrangement conveying the right to use) property (whether real, personal or mixed) by such Person as lessee which would, in accordance with GAAP, be required to be accounted for as a financing lease on the balance sheet of such Person.

“Cash Collateral Account” means a special cash collateral account pledged to the Administrative Agent containing cash deposited pursuant to the terms hereof to be maintained with the Administrative Agent.

“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Issuing Lender and the Lenders, as collateral for the Revolving L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Issuing Lender.

“Cash Dominion Event” means any time that (a) an Availability Trigger shall have occurred or (b) an Event of Default has occurred and is continuing. Once commenced, a Cash Dominion Event shall be deemed to be continuing until such time as (x) no Event of Default is continuing and (y) if such Cash Dominion Event resulted from an event specified in the preceding clause (a), Availability equals or exceeds for thirty (30) consecutive days the greater of (1) $65,000,000 and (2) 12.5% of the Line Cap then in effect.

“Cash Equivalents” means (i) securities issued or directly and fully guaranteed or insured by the United States Government or any agency or instrumentality thereof having maturities of no more than one year from the date of acquisition, (ii) certificates of deposit and SOFR time deposits with maturities of one year or less from the date of acquisition and overnight bank deposits of any Lender or of any commercial bank with commercial paper rated, on the day of such purchase, at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Xxxxx’x, (iii) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clauses (i) and (ii) entered into with any financial institution meeting the qualifications specified in clause (ii) above, (iv) commercial paper issued by any Lender, the parent corporation of any Lender or any Subsidiary of such Lender’s parent corporation, and commercial paper rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Xxxxx’x and in each case maturing within one year after the date of acquisition thereof, (v) money market funds that (A) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (B) are rated AA by S&P and Aa by Xxxxx’x and (C) have portfolio assets of at least $5,000,000,000 and (vi) money market funds existing on the Closing Date that are listed on Schedule 1B and (vii) in the case of Canadian Foreign Subsidiaries, investments that are substantially equivalent to the foregoing investments described in clauses (i) through (v) above that are available in Canadian Dollars.

“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit, purchasing or debit card, electronic funds transfer and other cash management arrangements.

“Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement or on the Closing Date, is a Lender or a Lead Arranger or an Affiliate of a Lender or a Lead Arranger, in its capacity as a party to such Cash Management Agreement.

“Cash Management Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person owing to a Cash Management Bank under or in respect of a Cash Management Agreement.

“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.

“CFC Holdco” means any direct or indirect Domestic Subsidiary (a) substantially all of the assets of which consist of the equity of one or more CFCs or (b) that is treated as a disregarded entity for U.S. federal income tax purposes that has no material assets other than equity of one or more CFCs

“Change in Law” means, with respect to any Lender, the adoption of any law, treaty, rule, regulation, policy, guideline or directive (whether or not having the force of law) or any change therein or in the interpretation or application thereof by any Governmental Authority, including, without limitation, the issuance of any final rule, regulation or guideline by any regulatory agency having jurisdiction over such Lender or, in the case of Section 5.12(b) or 5.20(b), any corporation controlling such Lender, in each case, after the date such Lender becomes a party to this Agreement; provided, however, 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.

“Change of Control” means the occurrence of any of the following events: (a) Parent fails to directly or indirectly own and control beneficially and of record (free and clear of all Liens other than Liens permitted under Section 9.3) the percentage of the Equity Interests of each Credit Party as set forth in Schedule 6.11 (other than as a result of a disposition permitted under Section 9.6); (b) the General Partner shall fail to directly own and control beneficially and of record (free and clear of all Liens other than Liens permitted under Section 9.3) 100% of the general partner interests of the Parent; (c) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and any Permitted Holder) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 35% or more of the voting Equity Interests of the General Partner on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (d) a majority of the members of the board of managers or other equivalent governing body of the General Partner (excluding vacant seats) cease to be Continuing Members.

“Class B Preferred Units” has the meaning assigned to such term in the Parent LPA, as in effect on the Fifth Amendment Effective Date.

“Class C Preferred Units” has the meaning assigned to such term in the Parent LPA, as in effect on the Fifth Amendment Effective Date.

“Class D Preferred Units” has the meaning assigned to such term in the Parent LPA, as in effect on the Fifth Amendment Effective Date.

“Closing Date” means the date on which the conditions specified in Section 7.1 are satisfied (or waived in accordance with Section 12.1).

“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or successor administrator).

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property and other assets of any Credit Party now existing or hereafter acquired, that is at any time required under the terms hereof or of any of the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.

“Collateral Access Agreement” has the meaning assigned to such term in the Pledge and Security Agreement.

“Collateral Agent” means JPMCB in its capacity as collateral agent and/or security trustee (as applicable) for the Secured Parties and its successors and assigns in such capacity (or such of its Affiliates as it may designate from time to time).

“Collateral Documents” means, collectively, the Pledge and Security Agreement, the Canadian Pledge and Security Agreement, each Mortgage, each Leasehold Mortgage, any additional pledges, security agreements, deeds of hypothec or mortgages that create or purport to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties and any instruments of assignment, Control Agreements, lockbox letters or other instruments or agreements executed pursuant to the foregoing.

“Collection Account” shall have the meaning assigned to such term in the Pledge and Security Agreement.

“Commitment Fee” has the meaning specified in Section 5.9(a).

“Commitment Percentage” means, with respect to any Lender, the Revolving Credit Commitment Percentage of such Lender.

“Commitments” means the collective reference to the Revolving Credit Commitments and the Revolving Credit Commitments Increases, if any (individually, a “Commitment”). On the Fifth Amendment Effective Date, the aggregate amount of the Revolving Credit Commitments is $600,000,000. The aggregate amount of all Revolving Credit Commitments Increases shall not exceed $200,000,000 after the Fifth Amendment Effective Date.

“Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Credit Party pursuant to any Credit Document or the transactions contemplated therein which is distributed by the Administrative Agent, any Lender or any Issuing Lender by means of electronic communications pursuant to this Section, including through an Approved Electronic Platform.

“Company” has the meaning specified in the preamble hereof.

“Company Materials” has the meaning specified in Section 8.2.

“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 Cash Interest Expense” means, for any period, the amount of Consolidated Interest Expense paid or required to be paid in cash by Credit Parties during such period.

“Consolidated Current Liabilities” means at any date, all amounts that would, in conformity with GAAP, be reflected in “total current liabilities” (or any like caption) on a consolidated balance sheet of the Parent and its Restricted Subsidiaries at such date, but excluding (a) the current portion of any Funded Debt of the Parent and its Restricted Subsidiaries, (b) without duplication of clause (a) above, all Indebtedness consisting of Term Loans and Secured Notes to the extent otherwise included therein and (c) all intercompany items between the Parent and its Restricted Subsidiaries.

“Consolidated EBITDA” means, for any period for the Credit Parties, the sum of:

(i) Consolidated Net Income for such period; plus

(ii) without duplication, those amounts which, in the determination of Consolidated Net Income for such period, have been deducted for:

(A) Consolidated Interest Expense;

(B) provisions for taxes based on income and profits (including state franchise taxes accounted for as income taxes in accordance with GAAP);

(C) depreciation, depletion, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period), abandonment, impairment and other non-cash charges and expenses (excluding any such non-cash charge or expense to the extent that it represents an accrual of or reserve for cash charges or expenses in any future period or amortization of a prepaid cash charge or expense that was paid in a prior period);

(D) all extraordinary, unusual or non-recurring expenses, including expenses related to the fair market value of contingent consideration costs and expenses relating to payment of actual legal proceedings, settlements, judgments, orders or decrees, to the extent reasonably acceptable to the Administrative Agent; provided that the aggregate amount of such expenses that may be added back to Consolidated EBITDA in any Measurement Period pursuant to this clause (ii)(D), clause (ii)(F)(II) and clause (ii)(G) shall not exceed in the aggregate $25,000,000;

(E) any net loss realized by the Credit Parties in connection with an Asset Sale (together with any related provision for taxes);

(F) any (x) charges, losses and expenses, and (y) prepayment premiums, breakage costs and SOFR indemnities, redeployment costs or funding costs, with respect to each of clause (x) and clause (y) incurred by the Credit Parties as a result of, or in connection with, (I) this Agreement, the Fifth Amendment and the transactions contemplated hereby and thereby, including the issuance of the Secured Notes, the incurrence of Indebtedness under the Term Loan Agreement and the consummation of the Refinancing, and (II) any issuance, incurrence, refinancing, redemption, repayment or prepayment of any other Indebtedness, to the extent permitted under this Agreement; provided that the aggregate amount of such expenses that may be added back to Consolidated EBITDA in any Measurement Period pursuant to this clause (ii)(F)(II), clause (ii)(D) and clause (ii)(G) shall not in the aggregate exceed $25,000,000;

(G) any (x) charges, costs and expenses and (y) all cash and non-cash restructuring and integration charges, costs and expenses, in each case incurred by the Parent or any of its Restricted Subsidiaries as a result of any issuance of Equity Interests or any proposed or actual acquisitions, investments, asset sales or divestitures permitted hereunder and costs of reporting and compliance requirements pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and under similar legislation of any other jurisdiction; and, in the case of items described in sub-clause (y), which are factually supportable, identifiable and documented and which are reasonably acceptable to the Administrative Agent; provided that the aggregate amount of such expenses that may be added back to Consolidated EBITDA in any Measurement Period pursuant to this clause (ii)(G), clause (ii)(D) and clause (ii)(F)(II) shall not in the aggregate exceed $25,000,000; and

(H) the amount of any pro forma “run rate” cost savings, operating expense reductions and synergies related to mergers and other business combinations, acquisitions, investments, dispositions, divestitures, restructurings, operating improvements, cost savings initiatives and other similar initiatives (including the modification and renegotiation of contracts and other arrangements but excluding, for the avoidance of doubt, any transaction that is the basis of a Material Business Expansion Project) which are factually supportable, identifiable and documented and projected by the Parent in good faith to result from actions that have been taken, are committed to be taken or with respect to which substantial steps have been taken (including prior to the Fifth Amendment Effective Date) or are expected to be taken (in the good faith determination of the Parent), within 12 months after such transaction, initiative or event is consummated, net of the amount of actual benefits realized during such period from such actions, in each case, calculated on a pro-forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period for which Consolidated EBITDA is being determined and as if such cost savings, operating expense reductions and synergies were realized on the first day of the applicable period for the entirety of such period; provided that the aggregate amount of such cost savings that may be added back to Consolidated EBITDA in any Measurement Period pursuant to this clause (ii)(H) shall not exceed, when combined with the aggregate pro-forma adjustments attributable to Material Business Expansion Projects, 15.0% of the Consolidated EBITDA of the Company and its Subsidiaries for such Measurement Period, and without giving effect to any such addback or adjustment and actual increases in such Consolidated EBITDA arising from such Material Business Expansion Projects or cost savings for such pro forma period; minus

(iii) (A) any amount which, in the determination of Consolidated Net Income for such period, has been added for any extraordinary or unusual gains and any non-cash income or non-cash gains (other than the accrual of revenue in the ordinary course of business), all as determined in accordance with GAAP plus (B) any net gain realized by the Credit Parties in connection with an Asset Sale (together with any related provision for taxes); minus

(iv) the aggregate amount of cash payments made during such period in respect of any non-cash accrual, reserve or other non-cash charge or expense accounted for in a prior period which were added to Consolidated Net Income to determine Consolidated EBITDA for such prior period and which do not otherwise reduce Consolidated Net Income for the current period.

Consolidated EBITDA for any Measurement Period shall be calculated on a pro-forma basis after giving effect to, without duplication, any Material Business Expansion Project, Permitted Acquisition with respect to which any Credit Party provided more than $50,000,000 of consideration or Material Asset Sale, as the case may be, and as if, such Material Business Expansion Project, Permitted Acquisition or Material Asset Sale occurred or was completed on the first day of the Measurement Period; provided that with regard to each Material Business Expansion Project such pro forma adjustment (x) shall be based upon forecasted income that is derived from a minimum value contract or other revenue contract of the Company or any of its Subsidiaries that features a fixed fee that automatically steps up on a date certain notwithstanding any change in volumes or other conditions, less appropriate direct and indirect costs to realize such income, and (y) when aggregated with all pro-forma adjustments attributable to Material Business Expansion Projects and cost savings added back to Consolidated EBITDA in any Measurement Period pursuant to clause (ii)(H) above shall not exceed 15.0% of the Consolidated EBITDA for any Measurement Period, and without giving effect to any such addbacks or adjustments and actual increases in such Consolidated EBITDA arising from such Material Business Expansion Projects or cost savings for such pro forma period; provided further that any such pro-forma adjustments to Consolidated EBITDA shall be reasonably acceptable to the Administrative Agent.

“Consolidated Interest Expense” means, for any period the amount of interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest expense in accordance with GAAP, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Swap Contracts in respect of interest rates, for such period minus the net amount receivable under Swap Contracts in respect of interest rates; provided that, for purposes of calculating Consolidated Interest Expense for any period for determining the Fixed Charge Coverage Ratio, if during such period (or in the case of pro-forma calculations, during the period from the last day of such period to and including the date as of which such calculation is made) a Credit Party shall have incurred or repaid Material Indebtedness (other than any Loans), then Consolidated Interest Expense for such period shall be calculated after giving effect thereto on a pro-forma basis.

“Consolidated Net Debt” means, at any date, (a) the aggregate principal amount of all Indebtedness of the Credit Parties of the type specified in clauses (i) (but excluding any earn-out obligations, holdback payments or similar obligations unless such obligation is due and not paid), (ii) (but solely to the extent of the amounts drawn under such letters of credit and not reimbursed), (iv), (viii) and (xii) of the definition of Indebtedness, in each case, as determined on a consolidated basis in accordance with GAAP, minus (b) cash and Cash Equivalents of the Parent and each Restricted Subsidiary that is a Wholly-Owned Subsidiary (other than Restricted Cash) (i) if no Revolving Credit Loans or Revolving L/C Obligations are outstanding as of such date, in an unlimited amount and (ii) otherwise, in an aggregate amount not to exceed $25,000,000, in each case, as set forth on the consolidated balance sheet of the Parent and its Restricted Subsidiaries in accordance with GAAP.

“Consolidated Net Income” means, for any period, the net income (or net loss) after taxes of the Credit Parties for such period, determined on a consolidated basis in accordance with GAAP; provided that:

(a) any gain (loss) realized upon the sale or other disposition of any property, plant or equipment of the Parent or its consolidated Restricted Subsidiaries (including pursuant to any sale or leaseback transaction) which is not sold or otherwise disposed of in the ordinary course of business and any gain (loss) realized upon the sale or other disposition of any Equity Interests of the Parent or any of its Restricted Subsidiaries will be excluded;

(b) the net income (but not loss) of any Person that is not the Parent or a Restricted Subsidiary of the Parent or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the Parent or a Restricted Subsidiary of Parent;

(c) the net income (but not loss) of any Restricted Subsidiary of the Parent that is not a Guarantor will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, partners or members;

(d) any unrealized losses and gains for such period under derivative instruments included in the determination of Consolidated Net Income, including, without limitation, those resulting from the application of FASB ASC 815, will be excluded;

(e) all non-cash equity-based compensation expense, including all non-cash charges related to restricted Equity Interests and redeemable Equity Interests granted to officers, directors and employees, will be excluded;

(f) any charges associated with any write-down, amortization or impairment of goodwill or other tangible or intangible assets will be excluded; and

(g) any non-cash or other charges relating to any premium or penalty paid, write off of deferred financing costs or other financial recapitalization charges in connection with redeeming or retiring any Indebtedness prior to its stated maturity (including, without limitation, premiums or penalties paid to counterparties in connection with the breakage, termination or unwinding of Swap Obligations) will be excluded.

“Consolidated Net Leverage Ratio” means, as of the last day of the applicable Measurement Period, the ratio of (i) Consolidated Net Debt as of such last day to (ii) Consolidated EBITDA for such Measurement Period.

“Consolidated Net Tangible Assets” means, with respect to any specified Person as of any date of determination, the sum of the amounts that would appear on a consolidated balance sheet of such Person and its consolidated Restricted Subsidiaries as the total assets (less accumulated depreciation and amortization, allowances for doubtful receivables, other applicable reserves and other properly deductible items) of such Person and its Restricted Subsidiaries, after giving effect to purchase accounting and after deducting therefrom Consolidated Current Liabilities and, to the extent otherwise included, the amounts of (without duplication):

(a) the excess of cost over fair market value of assets or businesses acquired;

(b) any revaluation or other write-up in book value of assets subsequent to the last day of the fiscal quarter of such Person immediately preceding the Fifth Amendment Effective Date as a result of a change in the method of valuation in accordance with GAAP;

(c) unamortized debt discount, unamortized debt expenses and other unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, licenses, organization or developmental expenses, and other intangible items;

(d) minority interests in consolidated Subsidiaries held by Persons other than the specified Person or any Restricted Subsidiary;

(e) treasury stock;

(f) cash or securities set aside and held in a sinking or other analogous fund established for the purpose of redemption or other retirement of capital stock to the extent such obligation is not reflected in Consolidated Current Liabilities; and

(f) Investments in and assets of Unrestricted Subsidiaries.

“Consolidated Total Assets” means, at any date, the total consolidated assets of the Credit Parties determined on a consolidated basis in accordance with GAAP (and excluding all intercompany items) as of the date of the most recent financial statements delivered in accordance with Section 8.1(a) or 8.1(b) of this Agreement.

“Contingent Obligation” means, as to any Person, any obligation of such Person guaranteeing or in effect guaranteeing any Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include (x) endorsements of instruments for deposit or collection in the ordinary course of business and (y) any obligation resulting from the existence of deferred revenue, including customer deposits. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount (based on the maximum reasonably anticipated net liability in respect thereof as determined by the Company in good faith) of the primary obligation or portion thereof in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated net liability in respect thereof (assuming such Person is required to perform thereunder) as determined by the Company in good faith.

“Continuing Member” means (a) individuals who on the Closing Date constituted the board of managers or other equivalent governing body of the General Partner and (b) any new members of the board of managers or other equivalent governing body of the General Partner whose election or whose nomination for election by the holders of the Equity Interests of the General Partner was approved by at least a majority of the members then still in office (or a duly constituted committee thereof) either who were members on the Closing Date or whose election or nomination for election was previously so approved.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or undertaking to which such Person is a party or by which it or any of the property owned by it is bound.

“Control Agreement” means an account control agreement (or similar agreement), in form and substance acceptable to the Administrative Agent, executed by the applicable Credit Party, the Administrative Agent, the Collateral Agent and the relevant bank, securities intermediary or commodity intermediary, as applicable, party thereto. Such agreement shall provide a first priority perfected Lien in favor of the Collateral Agent, for the benefit of the Secured Parties, in the applicable Credit Party’s Deposit Account, Securities Account or Commodity Account, as applicable; provided any such agreement delivered in respect of a Securities Account or Commodity Account that is an Eligible Futures Account shall not be required to provide a first priority perfected Lien in favor of the Collateral Agent, for the benefit of the Secured Parties, to the extent of Brokerage Account Deducts.

“Controlled Account” means a Deposit Account, Securities Account or Commodity Account that is subject to a Control Agreement.

“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

“Covered Entity” means any of the following:

(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

(iii) 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 assigned to it in Section 12.18.

“Credit Documents” means the collective reference to this Agreement, the Notes, the Guaranty (including any guarantee or Credit Party Accession Agreement executed and delivered pursuant to Section 8.10 or 9.15 of this Agreement), the Collateral Documents, the Intercreditor Agreement, any Incremental Facility Amendment and any other document or instrument designated by the Company and the Administrative Agent as a “Credit Document”. Any reference in this Agreement or any other Credit Document to a Credit Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, amendments and restatements, supplements or other modifications thereto.

“Credit Parties” means the collective reference to the Company and each Guarantor.

“Credit Party Accession Agreement” means an accession agreement, substantially in the form of Exhibit D hereto, executed and delivered by a Subsidiary after the Closing Date, in accordance with Section 8.10 or Section 9.15.

“Crude Oil” means liquid petroleum, regardless of gravity, produced at the well by ordinary production methods and which are not the result of condensation of gas before or after it leaves the reservoir.

“Customary Recourse Exceptions” means, with respect to any Non-Recourse Debt of an Unrestricted Subsidiary or joint venture, (a) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any joint venture owned by the Parent or any Restricted Subsidiary to the extent securing otherwise Non-Recourse Debt of such Unrestricted Subsidiary or joint venture and (b) exclusions from the exculpation provisions with respect to such Non-Recourse Debt for the voluntary bankruptcy of such Unrestricted Subsidiary or joint venture, fraud, misapplication of cash, environmental claims, waste, willful destruction and other circumstances customarily excluded by lenders from exculpation provisions or included in separate indemnification agreements in non-recourse financings.

“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day that is five (5) U.S. Government Securities Business Days prior to (a) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (b) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Company.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding Up and Restructuring Act (Canada) and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Default” means any of the events specified in Article 10, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

“Defaulting Lender” means, subject to Section 5.24, any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Finance Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Xxxxxx’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Company or any Finance Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement relates to such Xxxxxx's obligation to fund a Loan hereunder and indicates that such position is based on such Xxxxxx’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after request in writing by the Administrative Agent or any Issuing Xxxxxx, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Finance Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has, or has a direct or indirect parent entity that has, after the date hereof, become the subject of (i) a Bankruptcy Event or (ii) a Bail-In Action.

“Delaware Assets” shall mean the fee-owned Material Real Property Assets that are part of the Delaware Pipeline.

“Delaware Pipeline” shall mean pipeline systems of the Credit Parties located in Lea County, New Mexico; Eddy County, New Mexico; Loving County, Texas and Reeves County, Texas.

“Designated Cash Management Obligations” means, as of any date, Cash Management Obligations that are Finance Obligations and that have been designated in writing by the Company in its sole discretion (or designated in the Borrowing Base Certificate most recently delivered on or prior to such date) or by any Lender to the Administrative Agent as “Designated Cash Management Obligations”; provided that in each case such designation shall not become effective until the third Business Day following the Administrative Agent’s receipt of such designation (it being acknowledged and agreed that, unless so designated, no Reserve in respect of such Cash Management Obligation will be instituted or maintained). All Cash Management Obligations of the Administrative Agent and its Affiliates that are Finance Obligations will be deemed to be “Designated Cash Management Obligations” without the need of further notice. The Company agrees that it shall not designate any Cash Management Obligations under clause (b) of the definition thereof as Designated Cash Management Obligations, and any such purported designation by the Company shall be null and void (and no Reserves shall be established in respect of such Cash Management Obligations in any event).

“Designated Swap Obligations” means, as of any date, Swap Obligations that are Finance Obligations and that have been designated in writing by the Company in its sole discretion (or designated in the Borrowing Base Certificate most recently delivered on or prior to such date) to the Administrative Agent as “Designated Swap Obligations”; provided that in each case such designation shall not become effective until the third Business Day following the Administrative Agent’s receipt of such designation (it being acknowledged and agreed that, unless so designated, no Reserve in respect of such Swap Obligation will be instituted or maintained).

“Designated Value” means, with respect to any Real Property, the book value of such Real Property, together with the book value of all fixtures appurtenant thereto and all improvements thereon.

“Detached RIN” means a RIN generated in accordance with RFS that is no longer associated with a specific gallon of biofuel to the extent such separation has occurred as provided in 40 CFR 80.1429(b), or such successor rule or regulation that governs the separation of RINs from a volume of renewable fuel.

“Disqualified Stock” shall mean any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (i) except as set forth in the proviso hereto, matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Equity Interests that are not Disqualified Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, or (ii) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (x) debt securities or (y) any Equity Interest referred to in clause (i) above, in each case of clauses (i) and (ii), at any time prior to the 91st day after the Scheduled Termination Date; provided that such Equity Interest may by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) become mandatorily redeemable or redeemable at the option of the holder thereof upon the occurrence of a change in control or Asset Sale subject to (1) payment in full in cash of all Obligations (other than Letters of Credit and contingent indemnification obligations not then due and owing) and (2) all Letters of Credit having been cancelled (unless the sum of sum of (A) the aggregate unpaid amount of Revolving L/C Obligations outstanding at the time of such request and (B) the maximum aggregate amount available to be drawn under all Letters of Credit outstanding at such time thereof has been Cash Collateralized in accordance with the terms of this Agreement or a backstop letter of credit reasonably satisfactory to the Issuing Lender has been provided); provided, further, that if such Equity Interest is issued to any current or former employee or to any plan for the benefit of employees, directors, officers, members of management or consultants of the Parent or its Restricted Subsidiaries or by any such plan to such employees, directors, officers, members or management or consultants, such Equity Interest shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Parent or its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s, director’s, officer’s, management member’s or consultant’s termination, death or disability.

“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in Canadian dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the Issuing Lender, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with Canadian dollars.

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

“Domestic Subsidiary” means any Subsidiary of the Company other than a Foreign Subsidiary.

“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.

“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.

“Eligible Account” means, at any time, each Account of the Company or other Credit Party that is not ineligible for inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through (y) below. Without limiting the Administrative Agent’s discretion provided herein, Eligible Accounts shall not include any Account:

(a) which is not subject to a first priority perfected security interest in favor of the Collateral Agent;

(b) which is subject to any Lien other than (i) a Lien in favor of the Collateral Agent and (ii) a Lien permitted by clause (a), (b), (e), (n) or (p) of Section 9.3 (provided that such Liens shall not be prior to the Liens of the Collateral Agent unless a Reserve shall have been established for such Liens);

(c) (i) which is unpaid more than seventy-five (75) days after the date of the original invoice therefor or more than thirty (30) days after the original due date therefor, or (ii) which has been written off the books of the applicable Account Debtor or otherwise designated as uncollectible;

(d) which is owing by an Account Debtor for which more than 50% of the Accounts owing by such Account Debtor and its Affiliates are ineligible pursuant to clause (c) above;

(e) which is owing by (i) an Account Debtor with a rating of BBB- or higher by S&P or Baa3 or higher by Moody’s (or if no such rating exists, the equivalent of such rating by any other nationally recognized securities rating agency) to the extent the aggregate amount of Accounts owing by such Account Debtor and its Affiliates to the Credit Parties that would be included as “Eligible Accounts” but for this clause (e)(i) exceeds 20% of the aggregate amount of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excess of such percentage or (ii) an Account Debtor other than one described in clause (e)(i) to the extent the aggregate amount of Accounts owing by such Account Debtor and its Affiliates to the Credit Parties that would be included as “Eligible Accounts” but for this clause (e)(ii) exceeds 15% of the aggregate amount of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excess of such percentage;

(f) with respect to which any covenant, representation or warranty contained in this Agreement or in the Collateral Documents has been breached or is not true in any material respect;

(g) which (i) does not arise from the sale of goods or performance of services in the ordinary course of business, (ii) is not evidenced by an invoice or other documentation in a form heretofore supplied to the Administrative Agent or its agent (or is otherwise satisfactory to the Administrative Agent) which has been sent to the Account Debtor (it being understood that the foregoing shall not be applicable in circumstances where the applicable Account Debtor has not received (or does not generally receive in the ordinary course of business) an invoice from a Credit Party requesting payment with respect to any such Account so long as (x) any such unbilled Account has been recorded in the books and records of such Credit Party, and (y) title to the underlying Inventory sold by such Credit Party has passed to the purchaser thereof), (iii) represents a progress billing, (iv) is contingent upon the Company's completion of any further performance, (v) represents a sale on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment, cash-on-delivery or any other repurchase or return basis or (vi) relates to the payment of interest;

(h) for which the goods giving rise to such Account have not been shipped to the Account Debtor or for which the services giving rise to such Account have not been performed by the applicable Credit Party;

(i) with respect to which any check or other instrument of payment has been returned uncollected for any reason;

(j) which is owed by an Account Debtor which has (i) applied for, suffered, or consented to the appointment of any receiver, interim receiver, monitor, custodian, trustee, or liquidator of its assets, (ii) had possession of all or a material part of its property taken by any receiver, interim receiver, monitor, custodian, trustee or liquidator, (iii) filed, or had filed against it, any assignment, application, request or petition for liquidation, reorganization, compromise, arrangement, adjustment of debts, adjudication as bankrupt, winding-up, or voluntary or involuntary case or proceeding under any state, provincial, territorial or federal bankruptcy laws (other than post-petition accounts payable of an Account Debtor that is a debtor-in-possession under a Bankruptcy Event and reasonably acceptable to the Administrative Agent), (iv) admitted in writing its inability, or is generally unable to, pay its debts as they become due, (v) become insolvent, or (vi) ceased operation of its business;

(k) which is owed by any Account Debtor which has sold all or substantially all of its assets;

(l) which is owed by an Account Debtor that fails to satisfy at least one of the following requirements: (i) it maintains its chief executive office in the U.S. or Canada or (ii) its jurisdiction of organization is in the U.S. or Canada;

(m) which is owed in any currency other than U.S. dollars or Canadian dollars.

(n) which is owed by (i) any Governmental Authority of any country other than the U.S. unless such Account is backed by a Letter of Credit acceptable to the Administrative Agent which is in the possession of, and is directly drawable by, the Administrative Agent (ii) any Governmental Authority of the U.S., or any department, agency, public corporation, or instrumentality thereof, unless the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq. and 41 U.S.C. § 15 et seq.), and any other steps necessary to perfect the Lien of the Collateral Agent in such Account have been complied with, or (iii) any Governmental Authority of Canada, or any province, territory, department, agency, public corporation, or instrumentality thereof, unless the Financial Administration Act (Canada) or any provincial or territorial legislation of similar purpose and effect restricting the assignment of such Account and any other steps necessary to perfect the Lien of the Administrative Agent in such Account, have been complied with;

(o) which is owed by any Credit Party or any Affiliate of any Credit Party or any employee, officer, director, agent or stockholder of any Credit Party or any of its Affiliates;

(p) which is owed by an Account Debtor to which any Credit Party is indebted, but only to the extent of such indebtedness, or is subject to any security, deposit, progress payment, retainage or other similar advance made by or for the benefit of an Account Debtor, in each case to the extent thereof;

(q) which is subject to any counterclaim, deduction, defense, setoff or dispute, but only to the extent of any such counterclaim, deduction, defense, setoff or dispute;

(r) which is evidenced by any promissory note, Chattel Paper or Instrument unless all steps necessary to perfect the Lien of the Collateral Agent in such promissory note, Chattel Paper or Instrument have been complied with in a manner reasonably satisfactory to the Administrative Agent;

(s) which is owed by an Account Debtor (i) that to the knowledge of a Credit Party is located in any jurisdiction which requires filing of a “Notice of Business Activities Report” or other similar report in order to permit the applicable Credit Party to seek judicial enforcement in such jurisdiction of payment of such Account, unless the applicable Credit Party has filed such report or qualified to do business in such jurisdiction or (ii) which is a Sanctioned Person;

(t) with respect to which the applicable Credit Party has made any agreement with the Account Debtor for any reduction thereof, other than discounts and adjustments given in the ordinary course of business but only to the extent of any such reduction, or any Account which was partially paid and the Credit Party created a new receivable for the unpaid portion of such Account;

(u) which does not comply in all material respects with the requirements of all applicable laws and regulations, whether federal, state, provincial, territorial or local, including, without limitation, the Federal Consumer Credit Protection Act, the Federal Truth in Lending Act and Regulation Z of the Board;

(v) which is for goods that have been sold under a purchase order or pursuant to the terms of a contract or other agreement or understanding (written or oral) that indicates or purports that any Person (other than the applicable Credit Party) has or has had an ownership interest in such goods, or which indicates any party (other than the applicable Credit Party or the Collateral Agent) as payee or remittance party;

(w) which was created on cash on delivery terms;

(x) as to which the contract or agreement underlying such Account is governed by the laws of any jurisdiction other than (or, if no governing law is expressed therein, as to which, under applicable choice of law principles, such Account would not be governed by the laws of any of the United States, any state thereof or the District of Columbia or the federal laws of Canada or the laws of any province or territory of Canada.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 12.6 (subject to such consents, if any, as may be required thereunder).

“Eligible Carrier” means any of the carriers listed or described in Schedule 1C, as such Schedule 1C may be revised by the Company from time to time with the consent of the Administrative Agent, such consent not to be unreasonably withheld.

“Eligible Cash Collateral” means, as of any date of determination, any Dollars or Cash Equivalents of the Credit Parties (other than those of the type specified in clause (vii) of the definition thereof) that are (a) held in a segregated and fully-blocked Controlled Account with the Administrative Agent (i) from which funds cannot be withdrawn unless the requirements in Section 2.7 are satisfied and (ii) which exclusively contains such Eligible Cash Collateral and (b) not subject to Liens other than Liens in favor of the Administrative Agent for the benefit of the Secured Parties and Permitted Liens attaching by operation of law in favor of the applicable depository bank. For the avoidance of doubt, Eligible Cash Collateral does not include any amounts posted to Cash Collateralize Letters of Credit.

“Eligible Detached RINs” means, with respect to any RIN type at any time, the aggregate number of Detached RINs of such type owned by all Credit Parties at such time less the number of Detached RINs of such type that would be required to set off all renewable volume obligations of all Credit Parties under the RFS, if compliance with the renewable volume obligations under the RFS were required to be determined at such time.

“Eligible Futures Accounts” means at any time, a Commodity Account or Futures Account (as defined in the PPSA) of any Credit Party as of such date maintained with a reputable broker reasonably acceptable to the Administrative Agent (each, so long as such Person remains qualified as such pursuant to the next succeeding sentence, an “Eligible Broker”) with respect to positions held by such Eligible Broker on a regulated exchange (including the New York Mercantile Exchange, the Intercontinental Commodities Exchange and CME ClearPort) that have been maintained at all times and in all respects in accordance with this Agreement (including for the avoidance of doubt, all transactions credited to such Commodity Account or related thereto) which such Commodity Account is subject to, at all times after the date that is sixty (60) days after the Closing Date, (i) a perfected first priority Lien, subject only to Liens permitted pursuant to Section 9.3 that are made superior to such first priority lien automatically by operation of law and any Lien of such Eligible Broker in connection with any Indebtedness of the Credit Party to such Eligible Broker permitted by the applicable Control Agreement (including, but not limited to, if permitted, any right of the Eligible Broker to close out open positions of such Company without prior demand for additional margin and without prior notice) (such amounts in a Commodity Account subject to the liens and close-out rights of the Eligible Broker set forth in this clause (i), the “Brokerage Account Deducts”), and (ii) a Control Agreement among the Collateral Agent, such Credit Party holding such account and the Eligible Broker with which such account is maintained. For the avoidance of doubt, a broker may, at any time, cease to qualify as an “Eligible Broker” for all purposes hereunder upon two (2) Business Days’ notice thereof by the Administrative Agent, acting in its reasonable discretion, to Company. The determination of the Net Liquidating Value in Eligible Futures Accounts shall include any discounted face value of any U.S. Treasury Securities held as of such date in such account that are zero coupon securities issued by the United States of America, minus any unearned interest on such U.S. Treasury Securities as of such date; provided that the maturity date thereof is within six (6) months of the relevant determination date; provided, further, that the Net Liquidating Value in Eligible Futures Accounts calculated shall be net of any Brokerage Account Deducts.

“Eligible IG Account” means an Eligible Account that are owned by an Account Debtor with a rating of BBB- or higher by S&P or Baa3 or higher by Moody’s (or if no such rating exists, the equivalent of such rating by any other nationally recognized securities rating agency).

“Eligible Inventory” means all Product Inventory of the Credit Parties that is not ineligible for inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through (t) below. Without limiting the Administrative Agent’s discretion herein, Eligible Inventory shall not include any Product Inventory:

(a) which is not subject to a first priority perfected Lien in favor of the Collateral Agent, regardless of its location, under the Pledge and Security Agreement or the Canadian Pledge and Security Agreement;

(b) which is subject to any Lien other than (i) a Lien in favor of the Collateral Agent and (ii) a Lien permitted by clauses (a), (b), (f), (n), (p) and (u) of Section 9.3 (provided that such Liens shall not be prior to the Liens of the Collateral Agent unless a Reserve shall have been established for such Liens);

(d) with respect to which any covenant, representation or warranty contained in this Agreement or in the Collateral Documents has been breached in any material respect and which does not conform in any material respect to any applicable standard applicable to the sale or use thereof imposed by any Governmental Authority;

(e) in which any Person other than any Credit Party shall (i) have any direct or indirect ownership, interest or title or (ii) be indicated on any purchase order or invoice with respect to such Inventory as having or purporting to have an interest therein;

(f) [reserved];

(g) (i) is not located in the U.S. or Canada or (ii) is in transit;

(h) which is located in any location leased by the applicable Credit Party unless (i) the lessor has delivered to the Administrative Agent a Collateral Access Agreement or (ii) a Reserve for rent, charges and other amounts due or to become due in the next three-month period with respect to such facility has been established;

(i) which is located in any third party warehouse or is in the possession of a bailee (other than a third party processor or an Eligible Carrier) and is not evidenced by a Document (other than bills of lading in respect of Inventory in transit pursuant to clause (g) above), unless (i) such warehouseman or bailee has delivered to the Administrative Agent a Collateral Access Agreement and such other documentation as the Administrative Agent may require or (ii) a Reserve for charges for storage or transportation, insurance, labor and other similar expenses for which such warehouseman or bailee has a lien or a claim on the relevant Inventory has been established;

(j) which cannot be located;

(k) which is a discontinued product or component thereof;

(l) which is the subject of a consignment by a Credit Party as consignor;

(m) which is perishable;

(n) which contains or bears any intellectual property rights licensed to any Credit Party unless such Inventory may be sold or disposed of by the Credit Party or any Secured Party without (i) infringing the rights of such licensor, (ii) violating any contract with such licensor, or (iii) incurring any liability with respect to payment of royalties other than royalties incurred pursuant to the sale of such Inventory under the current licensing agreement;

(o) which is not reflected in a current perpetual inventory report (or such other inventory report acceptable to the Administrative Agent in its Permitted Discretion) of a Credit Party thereof (unless such Inventory is reflected in a report to the Administrative Agent as “in transit” Inventory);

(p) for which reclamation rights have been legally and validly asserted by the seller;

(q) [reserved];

(r) which has been acquired from a Sanctioned Person; or

(s) which in the case Inventory that is a RIN, is not Eligible RIN Inventory.

“Eligible Non-IG Account” means an Eligible Account that is not an Eligible IG Account.

“Eligible Railcar Inventory” means all Eligible Inventory of a Credit Party if such Eligible Inventory would qualify as Eligible Inventory except for any failure to satisfy clause (g) or (h) of the definition thereof that (i) has been delivered to an Eligible Carrier and either (A) a Credit Party has title to such Eligible Inventory or (B) such Credit Party has the absolute and unconditional right to obtain such Eligible Inventory from such Eligible Carrier and either (1) such Eligible Carrier has delivered to the Administrative Agent a Collateral Access Agreement and such other documentation as the Administrative Agent may require or (2) a Reserve for charges for storage or transportation, insurance, labor and other similar expenses for which such Eligible Carrier has a Lien or a claim on the relevant Inventory has been established or (ii) is in transit in a railcar under the control and ownership of a Credit Party.

“Eligible RIN Inventory” means all Inventory of a Credit Party consisting of Eligible Detached RINs that satisfy the following requirements: such inventory (i) is owned by such Credit Party, (ii) subject to a first priority perfected security interest for the benefit of the Secured Parties consistent with the Pledge and Security Agreement, (iii) has an expiration date at least 31 days after the Borrowing Base Certification Date, and (iv) is valid for use in accordance with RFS.

“Environmental Laws” means any and all applicable federal, state, provincial, territorial, local or municipal Laws, including common law, rules, orders, regulations, statutes, ordinances, codes, decrees or legally enforceable requirements of any Governmental Authority regulating, relating to or imposing liability or standards of conduct concerning human health as they relate to Materials of Environmental Concern or the protection of the environment, including, without limitation, Materials of Environmental Concern, as now or may at any time hereafter be in effect.

“Environmental Permit” means any permit, approval, license or other authorization required under any Environmental Law.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Company, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414(b), (c), (m), (n) or (o) of the Code or Section 4001(a)(14) of ERISA.

“ERISA Event” means (a) any “reportable event”, as defined in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) any failure to satisfy statutory minimum funding standards with respect to any Plan; (c) the filing pursuant to Section 412(c) of the Code of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Company or any ERISA Affiliates of any liability with respect to the withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Company or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Company or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA.

“Event of Default” means any of the events specified in Article 10, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

“Excess Cash” means any cash or Cash Equivalents of the Parent and each Restricted Subsidiary that is a Wholly-Owned Subsidiary (other than Cash Collateralizing any Letter of Credit) in the aggregate at any time, net of and reduced by (without duplication): (a) any Eligible Cash Collateral and any cash and Cash Equivalents contained in any Material Debt Reserve Account, any Asset Sale Reserve Account or any accounts used exclusively for escrow, payroll, withholding, taxes, trust, fiduciary purposes, employee wages and employee benefits or held in an account subject to a Lien described in clause (c), (j) and (v) of Section 9.3 in favor of a third party (other than the Collateral Agent or the Administrative Agent), (b) any cash or Cash Equivalents constituting purchase price deposits held in escrow by any unaffiliated third party pursuant to a binding and enforceable purchase and sale agreement with such third party containing customary provisions regarding the payment and refunding of such deposits, (c) any cash or Cash Equivalents to be used by the Parent, the Company or any other Restricted Subsidiary that is a Wholly-Owned Subsidiary within five (5) Business Days to pay the purchase price for property to be acquired by the Parent, the Company or any Restricted Subsidiary that is a Wholly-Owned Subsidiary pursuant to a binding and enforceable purchase and sale agreement with an unaffiliated third party containing customary provisions regarding the payment of such purchase price in the ordinary course of business, (d) any cash and Cash Equivalents received by the Parent, the Company or any Restricted Subsidiary that is a Wholly-Owned Subsidiary in connection with any Asset Sale, casualty event or condemnation that are required to be used to make mandatory payments of the Fixed Debt (or if the Payment Conditions are then satisfied, any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien) and any Permitted Refinancing Indebtedness in respect thereof or otherwise permitted to be reinvested in assets of the Parent and its Restricted Subsidiaries constituting Collateral in accordance with the terms of the Fixed Debt Documents (or if the Payment Conditions are then satisfied, the indenture or documents governing any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien) (but only for so long as the obligation to make such payment or the right to reinvest such proceeds, as applicable, has not expired or terminated by the terms of the Fixed Debt Documents or the indenture or documents governing such Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien and any Permitted Refinancing Indebtedness in respect thereof), (e) any cash or Cash Equivalents in an amount up to the aggregate amount of outstanding checks or initiated wires or ACH transfers issued by any Credit Party and (f) any cash or Cash Equivalents to be used by the Parent, the Company or any other Restricted Subsidiary that is a Wholly-Owned Subsidiary within five (5) Business Days to (x) pay mandatory prepayments of, or accrued and unpaid interest then due and owing under, the Fixed Debt (or any Permitted Refinancing thereof) or (y) make payments to holders of, or otherwise on, the Existing Preferred Units (which payments may include payments in respect of distribution amounts (including any penalty or default amounts), liquidation preference, stated value, redemption amounts, accretion amounts and/or distribution amounts), in each case, to the extent permitted to be paid hereunder.

“Excess Cash Test Date” means the last Business Day of each month, commencing with the last Business Day of the month in which the Fifth Amendment Effective Date occurs.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Excluded Account” means accounts that are (a) solely used for the purposes of making payments in respect of payroll, taxes and employees’ wages and benefits, (b) disbursement accounts where solely proceeds of indebtedness, including the proceeds of the Loans are deposited, (c) zero balance accounts from which balances are swept daily to a Controlled Account, (d) third party trust accounts, (e) accounts subject to Liens permitted under Section 9.3(c) or (j), and (f) other accounts with funds on deposit with a daily average balance of less than $2,000,000 individually and $10,000,000 in the aggregate.

“Excluded Subsidiary” means (a) any Immaterial Subsidiary, (b) any Subsidiary that is a CFC or CFC Holdco, (c) any Domestic Subsidiary that is a direct or indirect Subsidiary of a CFC or a CFC Holdco and (d) solely in the case of any Swap Obligation that constitutes a “swap” within the meaning of section 1(a)(47) of the Commodity Exchange Act, any Subsidiary of the Company that is not a Qualified ECP Participant.

“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of the Company hereunder, (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 Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under this Agreement) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 5.23(b), 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) in the case of a Lender, Canadian federal withholding Taxes imposed on amounts paid or credited to a Lender as a result of such Lender (A) not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with any Canadian Credit Party, or (B) being a “specified shareholder” (as defined in subsection 18(5) of the Income Tax Act (Canada)) of any Canadian Credit Party or not dealing at arm’s length with such a specified shareholder for purposes of the Income Tax Act (Canada), except, in the case of (A) or (B) above, where the non-arm’s length relationship arose, or the Lender was a specified shareholder or was dealing non-arm’s length with a specified shareholder, solely as a result of such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under or enforced this Agreement or any other Credit Document, (d) Taxes attributable to such recipient’s failure to comply with Section 5.23(g) and (e) any withholding Taxes imposed under FATCA.

“Existing Preferred Units” means the Class B Preferred Units, Class C Preferred Units and the Class D Preferred Units, in each case, existing on the Fifth Amendment Effective Date.

“Extensions of Credit” means the collective reference to Loans made and Letters of Credit issued under this Agreement.

“Facility” means each of (i) the Revolving Credit Commitments and the extensions of credit made thereunder (the “Revolving Credit Facility”), and (ii) the Revolving Credit Commitments Increases and Incremental Revolving Credit Loans (if any) made thereunder.

“FATCA” means Sections 1471 through 1474 of the Code (or any amended or successor provisions that are substantively similar) and any regulations thereunder or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate, provided that, if the Federal Funds Effective Rate shall be less than 0.00%, such rate shall be deemed to be 0.00% for the purposes of this Agreement.

“Fee Letter” means the letter dated January 9, 2021 between the Parent and JPMCB.

“Fifth Amendment” means that certain Fifth Amendment to Credit Agreement dated as of February 2, 2024, among the Company, the Parent, the other Guarantors party thereto, the Administrative Agent and the Lenders party thereto.

“Fifth Amendment Effective Date” means February 2, 2024.

“Finance Obligations” means, at any date, (i) all Obligations, (ii) all Swap Obligations of a Credit Party permitted hereunder owed or owing under any Swap Contract to any Hedge Bank and (iii) all Cash Management Obligations of a Credit Party owing under any Cash Management Agreement to a Cash Management Bank.

“Finance Party” means, collectively, the Agents, the Lenders, the Swingline Lender and the Issuing Lender.

“First Amendment Effective Date” means November 8, 2021.

“First Purchaser Lien” means a Lien as defined in Texas Bus. & Com. Code Section 9.343, or comparable laws of the states of Oklahoma, Kansas, Mississippi, Wyoming, or New Mexico, or any other state.

“Fixed Charge Coverage Ratio” means, as of the date of determination for the applicable Measurement Period, the ratio of (i) Consolidated EBITDA during such Measurement Period minus Unfinanced Capital Expenditures during such Measurement Period to (ii) Fixed Charges during such Measurement Period.

“Fixed Charges” means, for any period, the sum of (a) Consolidated Cash Interest Expense for such period (excluding fees paid on the Closing Date or on the Fifth Amendment Effective Date), (b) the aggregate amount of income taxes and other taxes of the Credit Parties paid or required to be paid in cash during such period (determined on a consolidated basis, but net of any refund in respect of taxes actually received in cash during such period and to the extent not included in the calculation of Consolidated EBITDA), (c) the aggregate amount of all principal of Indebtedness of the Credit Parties (including payments in respect of Capital Leases), in each case, scheduled to be paid in cash during such period (determined on a consolidated basis for such period) (except, in each case, to the extent payment is to be made with the proceeds of (i) Indebtedness other than any Loan, (ii) issuances of Equity Interests of the Parent (other than Disqualified Stock) or (iii) Material Asset Sales consummated for the purpose of using the net cash proceeds thereof for the payment of scheduled payments of Indebtedness of the Credit Parties), (d) the aggregate amount of all Restricted Payments paid in cash during such period to the extent permitted under Section 9.9 (excluding any cash dividends, distributions and other payments (i) in respect of Equity Interests paid or effected in cash by (A) a Credit Party to another Credit Party or (B) by a Restricted Subsidiary to a Credit Party or another Restricted Subsidiary, (ii) constituting proceeds of Indebtedness (other than the Revolving Credit Loans) used to make payments to holders of, or otherwise on, the Existing Preferred Units or any other preferred equity of the Parent (which payments may include payments in respect of distribution amounts (including any penalty or default amounts), liquidation preference, stated value, redemption amounts, accretion amounts and/or distribution amounts) or (iii) constituting the payment of accrued dividends or distributions on the Existing Preferred Units which dividends or distributions (x) have accrued on or prior to June 30, 2024 and (y) do not exceed $250,000,000 in the aggregate), and (e) the aggregate amount of all contributions to a Plan of the Credit Parties paid or required to be paid in cash during such period, without duplication, all calculated for the Credit Parties on a consolidated basis in accordance with GAAP.

“Fixed Debt” means Indebtedness incurred under Section 9.2(g) or 9.2(r).

“Fixed Debt Documents” means (a) the Secured Notes Indenture, (b) the Term Loan Agreement and (c) the indenture or other documents governing any other Fixed Debt.

“Fixed Debt Priority Collateral” has the meaning set forth in the Intercreditor Agreement.

“Fixed Debt Priority Collateral Prepayment Event” means the occurrence of any Asset Sale in respect of Fixed Debt Priority Collateral that yields Net Proceeds.

“Flood Insurance Laws” shall mean, collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the Second Amendment Effective Date, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR, as applicable. For the avoidance of doubt, the initial Floor as of the Second Amendment Effective Date for each of the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR shall be 0.00%.

“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than that in which the Company is a resident for tax purposes. For purposes of this definition, the United States, each state thereof, and the District of Columbia shall be deemed to constitute a single jurisdiction.

“Foreign Subsidiary” means any Subsidiary of the Company which is organized under the laws of any jurisdiction outside the United States (within the meaning of Section 7701(a)(9) of the Code).

“Funded Debt” means as to any Person, all Indebtedness of such Person that matures more than one year from the date of its creation or matures within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including all current maturities and current sinking fund payments in respect of such Indebtedness whether or not required to be paid within one year from the date of its creation and, in the case of the Company, Indebtedness in respect of the Loans, the Term Loans and the Secured Notes.

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

“General Partner” means NGL Energy Holdings LLC, a Delaware limited liability company.

“Governmental Authority” means any nation or government, any state, province, territory, municipality or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting regulatory capital rules or standards (including, without limitation, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).

“Grand Mesa Assets” shall mean the fee-owned Material Real Property Assets that are part of the Grand Mesa Pipeline.

“Grand Mesa Pipeline” shall mean the 550-mile pipeline that transports crude oil from its origin in Weld County, Colorado to the terminal of the Credit Parties in Cushing, Oklahoma.

“Guarantor” means, collectively, each of the Credit Parties identified as a “Guarantor” under the Guaranty, in such capacity, including each Wholly-Owned Domestic Subsidiary of the Company that is a Restricted Subsidiary (other than any Excluded Subsidiary) or Canadian Credit Party, in each case, that from time to time shall or shall be required to deliver a Guaranty or a Credit Party Accession Agreement or other guaranty or guaranty supplement pursuant to Section 8.10(b) or 9.15.

“Guaranty” means the guaranty, substantially in the form of Exhibit E hereto, made by one or more Guarantors in favor of the Secured Parties (or a substantially similar form of guaranty governed by Canadian law made by one or more Canadian Credit Parties), together with each other guaranty or guaranty supplement delivered pursuant to Section 8.10 or Section 9.15 of this Agreement.

“Hedge Bank” means any Person that, at the time it enters into a Swap Contract or on the Closing Date, is a Lender or a Lead Arranger or an Affiliate of a Lender or a Lead Arranger, in its capacity as a party to such Swap Contract.

“Immaterial Subsidiary” means any Restricted Subsidiary of the Parent designated as such by the Company; provided, that, (i) the total assets of all Immaterial Subsidiaries, determined in accordance with GAAP as of the date of the most recent financial statements delivered pursuant to Section 6.3, shall not exceed five percent (5%) of the Consolidated Total Assets of the Parent and its Restricted Subsidiaries as of such date and (ii) the Consolidated EBITDA of all Immaterial Subsidiaries shall not exceed, as of any date of determination, 5% of the Consolidated EBITDA of the Parent and its Restricted Subsidiaries for the applicable Measurement Period.

“Incremental Commitments Effective Date” has the meaning specified in Section 3.5.

“Incremental Facility Amendment” has the meaning specified in Section 3.4.

“Incremental Facility Closing Date” has the meaning specified in Section 3.6.

“Incremental Lender” has the meaning specified in Section 3.3.

“Incremental Revolving Credit Loans” has the meaning specified in Section 3.1.

“Indebtedness” means, of any Person, at any particular date, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than (A) accrued expenses and trade accounts payable that arise in the ordinary course of business and (B) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP), (ii) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder, (iii) all liabilities (other than Lease Obligations) secured by any Lien on any property owned by such Person, to the extent attributable to such Person’s interest in such property, even though such Person has not assumed or become liable for the payment thereof, (iv) obligations of such Person under Capital Leases, (v) all indebtedness of such Person arising under acceptance facilities and similar obligations created for the account of such Person, (vi) net liabilities of such Person in respect of Swap Obligations; (vii) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person; (viii) all obligations of such Person to pay the principal portion under any Synthetic Lease (calculated as the net present value of the rental payments thereunder with the implicit rate of interest of such Synthetic Lease as the discount factor); (ix) all Indebtedness of another entity to the extent such Person is liable therefor (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor; (x) all Contingent Obligations of such Person with respect to Indebtedness of others; (xi) all obligations of such Person in respect of Disqualified Stock; and (xii) obligations of such Person evidenced by notes, bonds, debentures or other similar instruments; but excluding any obligation resulting from the existence of deferred revenue, including customer deposits and interest thereon in the ordinary course of business which are not overdue for a period of more than ninety (90) days or, if overdue for a period of more than ninety (90) days, as to which a dispute exists and adequate reserves in conformity with GAAP have been established on the books of such Person.

“Indemnified Person” has the meaning specified in Section 12.5(c).

“Indemnified Taxes” means (a) Taxes other than Excluded Taxes and (b) to the extent not otherwise described in (a), Other Taxes.

“Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or its Lender Parent, (c) a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof or (d) the Company or any of its Affiliates; provided that, with respect to clause (c), such holding company, investment vehicle or trust shall not constitute an Ineligible Institution if it (x) has not been established for the primary purpose of acquiring any Loans or Commitments, (y) is managed by a professional advisor, who is not such natural person or a relative thereof, having significant experience in the business of making or purchasing commercial loans, and (z) has assets greater than $25,000,000 and a significant part of its activities consist of making or purchasing commercial loans and similar extensions of credit in the ordinary course of its business.

“Information” has the meaning specified in Section 12.13(a).

“Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of February 2, 2024, by and among the Administrative Agent, Toronto Dominion (Texas) LLC, as Term Loan Representative, U.S. Bank National Association, as Notes Representative, and the Credit Parties party thereto from time to time, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Interest Payment Date” means (a) with respect to any ABR Loan, the first Business Day of each quarter and the Revolving Credit Termination Date, (b) with respect to any RFR Loan (i) each date that is on the numerically corresponding day in each calendar month that is one (1) month after the borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) and (ii) the Revolving Credit Termination Date and (c) with respect to any Term Benchmark Loan, the last day of each Interest Period applicable to the borrowing of which such Loan is a part and, in the case of a Term Benchmark Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and the Revolving Credit Termination Date.

“Interest Period” means with respect to any borrowing of Term Benchmark Loans, the period commencing on the date of such borrowing of Loans and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter (in each case, subject to the availability for the Benchmark applicable to the relevant Loan), as the Company may elect; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (c) no tenor that has been removed from this definition pursuant to Section 5.17(f) shall be available for specification in any request made pursuant to Section 5.1 or Section 5.3. For purposes hereof, the date of a borrowing of Loans initially shall be the date on which such borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such borrowing.

“Investment” has the meaning specified in Section 9.7.

“Investment Conditions” means, as of any determination date, (a) no Default or Event of Default shall have occurred and be continuing or would result from the taking of the relevant action as to which the satisfaction of the Investment Conditions is being determined and (b) on a pro forma basis, immediately prior to and immediately after giving effect to any transaction that is subject to the Investment Conditions, either (i)(A) Availability is at least the greater of (x) 15% of the Line Cap and (y) $75,000,000, at such time and for the immediately preceding thirty (30) days and (B) the Fixed Charge Coverage Ratio is at least 1.0 to 1.0 or (ii) Availability is at least the greater of (A) 30% of the Line Cap and (B) $180,000,000, at such time and for the immediately preceding thirty (30) days.

“Issuing Lender” means JPMCB, Xxxxx Fargo Bank, National Association, The Toronto-Dominion Bank, New York Branch or any other Lender (or their respective Affiliates) which agrees to be an Issuing Lender and is designated by the Company and the Administrative Agent as an Issuing Lender, as issuer of Letters of Credit.

“Issuing Lender Sublimits” means, as of the Fifth Amendment Effective Date, (a) $75,000,000, in the case of JPMCB, (b) $50,000,000, in the case of Xxxxx Fargo Bank, National Association and (c) $75,000,000, in the case of The Toronto Dominion Bank, New York Branch, or, in each case of the foregoing, such larger amount as the Administrative Agent and the applicable Issuing Lender may agree in their respective sole discretion.

“JPMCB” means JPMorgan Chase Bank, N.A. and its successors.

“Krimbill Parties” means X. Xxxxxxx Xxxxxxxx, KrimGP2010, LLC, Krim2010, LLC and any trusts or family partnerships of X. Xxxxxxx Xxxxxxxx and his family members established for estate planning purposes; provided, that KrimGP2010, LLC, Krim2010, LLC and such trusts or family partnerships are directly or indirectly controlled by X. Xxxxxxx Xxxxxxxx.

“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, directives, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“L/C Application” means a letter of credit application in the Issuing Lender’s then customary form for the type of letter of credit requested.

“L/C Disbursement” means a payment made by an Issuing Lender pursuant to a Letter of Credit.

“L/C Participating Interest” means an undivided participating interest in the face amount of each issued and outstanding Letter of Credit and the L/C Application relating thereto.

“LCT Election” shall have the meaning provided in Section 1.6.

“LCT Test Date” shall have the meaning provided in Section 1.6.

“Lease Obligations” means, of the Credit Parties, as of the date of any determination thereof, the rental commitments of the Credit Parties determined on a consolidated basis, if any, under Operating Leases (net of rental commitments from sub-leases thereof).

“Leasehold Mortgage” means, in the case of Leaseholds, rights of way and easements constituting Material Real Property Assets, a leasehold mortgage, leasehold deed of trust or similar instrument, in a form to be reasonably agreed between the Company and the Collateral Agent, including any Credit Party, the Collateral Agent and one or more trustees, in each case with such changes thereto as may be recommended by the local counsel based on local laws or customary local practices, as the same may be amended, modified or supplemented from time to time.

“Leaseholds” means, with respect to any Person, all of the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.

“Lender” means each bank or other lending institution listed on Schedule 1A, each Eligible Assignee that becomes a Lender pursuant to Section 12.6(c), each Incremental Lender that becomes a Lender pursuant to Article 3 and their respective successors, branches and affiliates and shall include, as the context may require, the Swingline Lender in such capacity and the Issuing Lender in such capacity.

“Lender Affiliate” means (i) any Affiliate or branch of any Lender, (ii) any Person that is administered or managed by any Lender and that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and (iii) with respect to any Lender which is a fund that invests in commercial loans and similar extensions of credit, any other fund that invests in commercial loans and similar extensions of credit and is managed or advised by the same investment advisor/manager as such Lender or by an Affiliate of such Lender or investment advisor/manager.

“Lender Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.

“Lender Party” means the Administrative Agent, the Collateral Agent, each Issuing Lender or any other Lender.

“Lender-Related Person” has the meaning assigned to it in Section 12.5(b).

“Lending Office” means, with respect to any Lender, (a) with respect to its ABR Loans, the office of such Lender which will be making or maintaining its ABR Loans, (b) with respect to its RFR Loans, its RFR Lending Office and (c) with respect to its Term Benchmark Loans, its Term Benchmark Lending Office.

“Letter of Credit” means a letter of credit issued by an Issuing Lender pursuant to Section 2.3.

“Liabilities” means any losses, claims (including intraparty claims), demands, damages or liabilities of any kind.

“Lien” means any mortgage, pledge, charge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), or preference, priority or other security agreement, security interest or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the UCC, PPSA or comparable law of any jurisdiction in respect of any of the foregoing, except for the filing of financing statements in connection with Lease Obligations to the extent that such financing statements relate to the property subject to such Lease Obligations).

“Limited Condition Transaction” means (i) any Permitted Acquisition or similar Investment whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.

“Line Cap” means, as of any date of determination, the lesser of the aggregate Revolving Credit Commitments and the Borrowing Base, each as then in effect.

“Loans” means the collective reference to the Revolving Credit Loans (including Protective Advances), the Swingline Loans and the Incremental Revolving Credit Loans, if any; individually, a “Loan”.

“Majority Lenders” means, at a particular time, and subject to Section 5.24(b), Lenders that hold more than 50% of the sum of (i) the Revolving Credit Commitments or, if the Revolving Credit Commitments have been cancelled, the sum of (A) the aggregate then outstanding principal amount of the Revolving Credit Loans, plus (B) the L/C Participating Interests in the aggregate amount then available to be drawn under all outstanding Letters of Credit, plus (C) the aggregate then outstanding principal amount of Revolving L/C Obligations, plus (D) the aggregate amount represented by the agreements of the Lenders in Sections 2.8(a) and (b) with respect to the Protective Advances then outstanding and (ii) from and after any applicable Incremental Facility Closing Date, the related Revolving Credit Commitments Increases or, if the Revolving Credit Commitments Increases have been cancelled, the aggregate then outstanding principal amount of the related Incremental Revolving Credit Loans; provided that at any time there are fewer than three Lenders (who are not Affiliates of one another or Defaulting Lenders) party to this Agreement, the definition of “Majority Lenders” shall be “all Lenders”.

“Market Value” means the spot market price for Product (other than Eligible RIN Inventory) as of the last day in the period covered by the latest Borrowing Base Certificate as determined by a market price provider customarily used for such Product (including, but not limited to, Nymex, OPIS, Argus, and Platts) and location and reasonably acceptable to the Administrative Agent in its Permitted Discretion. With respect to RINs, (x) Attached RINs shall not be deemed to have a “Market Value” separate from the underlying Product to which they are attached and (y) the aggregate “Market Value” of all Eligible RIN Inventory at any time, shall equal the sum of (i) the value of all such Eligible RIN Inventory at such time determined from market price providers in accordance with the immediately preceding sentence, less (ii) the RIN Inventory Excess Setoff, if any, at such time.

“Material Adverse Effect” means (i) a material adverse effect on the business, financial condition, assets, or results of operations of the Parent and its Restricted Subsidiaries taken as a whole, (ii) a material impairment of the ability of the Company and the other Credit Parties, taken as a whole, to perform any of its obligations under any Credit Document to which it is a party, (iii) a material impairment of the rights and remedies of the Lenders under any Credit Document, (iv) a material adverse effect upon the legality, validity, binding effect or enforceability against any Credit Party of any Credit Documents to which it is a party or (v) a material impairment of the Collateral Agent’s Liens (on behalf of itself and the Secured Parties) on the Collateral taken as a whole.

“Material Asset Sale” means any Asset Sale or series of related Asset Sales that yields gross proceeds to the Parent, the Company or its Restricted Subsidiaries in excess of $25,000,000.

“Material Business Expansion Project” means an expansion of the Credit Parties’ business through the construction of fixed or capital assets that is permitted by this Agreement and the other Credit Documents and with respect to which one or more Credit Parties have made Capital Expenditures in excess of $25,000,000.

“Material Debt Reserve Account” means a Deposit Account in the name of the Company that is subject to a Control Agreement and in which amounts are deposited solely in respect of the payment of any Material Indebtedness (or any Permitted Refinancing Indebtedness thereof) at maturity thereof (and such account may not contain Cash Equivalents of the type specified in clause (vii) of the definition thereof).

“Material Indebtedness” means any Indebtedness of the Parent, the Company or its Restricted Subsidiaries in a principal amount equal to or greater than $100,000,000.

“Material Real Property Asset” means (a) any (x) Grand Mesa Asset and (y) Delaware Asset, in each case, with a Designated Value in excess of $1,000,000 and (b) any other Real Property of any Credit Party that is located in the United States and has a Designated Value equal to or greater than $10,000,000 as of the Fifth Amendment Effective Date or as of the date of acquisition thereof, excluding in the case of this subsection (b):

(i)

any Leasehold, easement or right of way if under the terms of the lease with respect to such Leasehold or conveyance document with respect to such easement or right-of-way, or applicable law, the grant of a Lien therein is prohibited or requires the consent of the applicable third party and such prohibition has not been waived or any necessary third party consents have not been obtained after the use of commercially reasonable efforts to do so (which, for the avoidance of doubt shall not require cash payments or other consideration aside from payment or reimbursement of reasonable fees and expenses in connection with the preparation and recording of the documentations related to such consents and mortgages); and

(ii)

any other Real Property or Real Property identified by a Credit Party, if the aggregate Designated Value of such Real Property, together with the Designated Value of any Real Property the subject of subsection (i) above, does not exceed the greater of $250,000,000 and 2.5% of Consolidated Total Assets.

“Materials of Environmental Concern” means any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, including, without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation, medical waste and radioactive materials, in each case, as regulated by any applicable Environmental Laws.

“Measurement Period” means, for any date of determination under this Agreement, the most recently ended period of four consecutive fiscal quarters of the Company for which financial statements have been delivered prior to the Closing Date or pursuant to Section 8.1(a) or 8.1(b), as applicable.

“XXXX Event” shall mean if there are any Mortgaged Properties at such time, any increase, extension or renewal of any of the Commitments or Loans (including Incremental Revolving Credit Loans or any other incremental credit facilities hereunder) but excluding (i) any continuation or conversion of borrowings, or (ii) the making of any Loan.

“Moody’s” means Xxxxx’x Investors Service, Inc., a Delaware corporation, and its successors or, absent any such successor, such nationally recognized statistical rating organization as the Company and the Administrative Agent may select.

“Mortgage” means, in the case of fee owned Material Real Property Assets, a mortgage, deed of trust, deed of hypothec or similar instrument, in a form to be reasonably agreed between the Company and the Administrative Agent, including any Credit Party, the Collateral Agent and one or more trustees, in each case with such changes thereto as may be recommended by the local counsel based on local laws or customary local practices, as the same may be amended, modified or supplemented from time to time.

“Mortgaged Property” means any Material Real Property Asset that becomes subject to a Mortgage or Leasehold Mortgage pursuant to this Agreement, in each case as to which the Administrative Agent for the benefit of the Secured Parties shall be granted a Lien pursuant to the Mortgages or Leasehold Mortgages. The Collateral Agent and the Secured Parties may determine that the burdens, costs or consequences of obtaining a Mortgage or Leasehold Mortgage on any Material Real Property Asset, all or any part of which contains a Building (as defined in the applicable Flood Insurance Laws) or Manufactured (Mobile) Home (as defined in the applicable Flood Insurance Law), are excessive in view of the benefits to be obtained by the Secured Parties. In the event that the Collateral Agent and the Secured Parties make such a determination, the Mortgage or Leasehold Mortgage relating to such Material Real Property Asset will contain customary exclusionary provisions with respect to such Building or Manufactured (Mobile) Home satisfactory to the Collateral Agent in its sole discretion. The exclusionary provisions included in each Mortgage or Leasehold Mortgage in effect as of the Fifth Amendment Effective Date will be included in the case of (a) any amendment, restatement, supplement or modification to a Mortgage or Leasehold Mortgage existing as of the Fifth Amendment Effective Date and (b) any new Mortgage or Leasehold Mortgage entered into after the Fifth Amendment Effective Date.

“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“Natural Gas Liquids” means liquid hydrocarbons, including as ethane, propane, butane, and pentane, that in each case, are extracted from field gas.

“Net Liquidating Value” means, with respect to any Commodity Account, the sum of (i) the aggregate marked-to-market value of all futures positions, (ii) the aggregate liquidation value of all option positions, (iii) the cash balance, in each case credited to such Commodity Account and (iv) Cash Equivalents credited to such Commodity Account.

“Net Open Position” with respect either Crude Oil, Natural Gas Liquids, Refined Petroleum Products and Renewable Products, as applicable, the absolute value of the number of barrels of such Product obtained by subtracting (a) the sum of (i) the number of barrels of such Product which the Credit Parties have committed to buy, or can be required to buy, or will receive under a commodity contract, on a future date at a fixed price; and (ii) the number of barrels of such Product that the Credit Parties have in Inventory from (b) the number of barrels of such Product that the Credit Parties have committed to sell, or can be required to sell, or will deliver under a commodity contract, on a future date at a fixed price.

“Net Proceeds” (a) while any Term Loans are outstanding, has the meaning assigned to the term “Net Proceeds” in the Term Loan Agreement and (b) if the Term Loans are not outstanding, has the meaning assigned to the term “Net Proceeds” (or any functionally equivalent term) in the other Fixed Debt Documents or, if applicable, the indenture or other documents governing any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien, which in each case Net Proceeds shall be calculated after giving effect to any de minimis thresholds, carve-outs or exceptions (but not any reinvestment rights) contained in the Term Loan Agreement (including, without limitation, the thresholds, carve-outs and exceptions contained in Section 2.04(b)(ii) of the Term Loan Agreement) or the other Fixed Debt Documents (or, if applicable, the indenture or other documents governing any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien) that have the effect of reducing the amount of any prepayment required to be made with respect to such Net Proceeds under the Term Loan Agreement or the other Fixed Debt Documents or the indenture or other documents governing Pari Passu Second Lien Debt, as applicable.

“Non-Consenting Lender” has the meaning specified in Section 12.1.

“Non-Extension Notice Date” has the meaning assigned to it in Section 2.3(c).

“Non-Recourse Debt” means Indebtedness (a) as to which neither the Parent nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (ii) is directly or indirectly liable as a guarantor or otherwise, in each case of clause (i) and (ii) above, except for Customary Recourse Exceptions; and (b) as to which the lenders thereof have been notified in writing that they will not have any recourse to the capital stock or assets of the Parent or any of its Restricted Subsidiaries (other than the Equity Interests of any Unrestricted Subsidiary or joint venture), except for Customary Recourse Exceptions.

“Notes” means the collective reference to any promissory notes evidencing Loans.

“Notice Period” has the meaning assigned to it in Section 8.10(d)(v).

“NYFRB” means the Federal Reserve Bank of New York.

“NYFRB Rate” means for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 A.M. on such day received to the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than 0.00%, such rates shall be deemed to be 0.00%.

“NYFRB’s Website” means the website of the NYFRB at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source.

“Obligations” means the unpaid principal of and interest on the Loans and all other obligations and liabilities of the Company and the other Credit Parties to the Agents or any Lenders (including, without limitation, interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, related to any Credit Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the Loans, the other Credit Documents, any Letter of Credit or L/C Application, or any other document made, delivered or given in connection therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees and disbursements of counsel to the Agents or any Lender or any such Affiliate) or otherwise.

“Operating Lease” means, as applied to any Person, a lease (including leases which may be terminated by the lessee at any time) of any property (whether real, personal or mixed) by such Person as lessee which is not a Capital Lease.

“Organization Documents” means: (i) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-United States jurisdiction); (ii) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (iii) 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 and 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 and, if applicable, any certificate or articles of formation or organization of such entity.

“Original Currency” has the meaning specified in Section 12.20.

“Other Connection Taxes” means, with respect to a Lender (including an Issuing Lender) or the Administrative Agent or any other recipient of any payment to be made by or on account of any obligation of the Company hereunder, 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 Credit Document, or sold or assigned an interest in any Loan or Credit Document).

“Other Specified Collateral Deliverables” has the meaning set forth in Section 8.10(d)(ii).

“Other Specified Collateral Requirements” has the meaning set forth in Section 8.10(d)(ii).

“Other Specified Property” has the meaning set forth in Section 8.10(d)(ii).

“Other Taxes” means all present or future stamp or documentary Taxes or any other excise or property Taxes or similar Taxes arising from any payment made hereunder or under any other Credit Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Credit Document.

“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.

“Parent” has the meaning specified in the preamble hereof.

“Parent LPA” means the Seventh Amended and Restated Agreement of Limited Partnership of Parent, dated as of October 31, 2019, as amended by the First Amendment to Seventh Amended and Restated Agreement of Limited Partnership of NGL Energy Partners LP dated as of February 4, 2021, as such may be further amended, modified or supplemented from time to time.

“Pari Passu Second Lien” means a Lien having equal priority to (i) the Liens securing the obligations under the Fixed Debt with respect to the ABL Priority Collateral and (ii) the Liens securing the Obligations with respect to the Fixed Debt Priority Collateral.

“Participant Register” has the meaning specified in Section 12.6(c).

“Participants” has the meaning specified in Section 12.6(c).

“Participating Lender” means any Lender (other than the Issuing Lender with respect to such Letter of Credit) with respect to its L/C Participating Interest in each Letter of Credit.

“Patriot Act” has the meaning specified in Section 6.24.

“Payment Conditions” means, as of any determination date, (a) no Default or Event of Default shall have occurred and be continuing or would result from the taking of the relevant action as to which the satisfaction of the Payment Conditions is being determined and (b) on a pro forma basis, immediately prior to and immediately after giving effect to any transaction that is subject to the Payment Conditions, either (i)(A) Availability is at least the greater of (x) 15% of the Line Cap and (y) $75,000,000, at such time and for the immediately preceding thirty (30) days and (B) the Fixed Charge Coverage Ratio is at least 1.0 to 1.0 or (ii) Availability is at least the greater of (A) 30% of the Line Cap and (B) $180,000,000, at such time and for the immediately preceding thirty (30) days.

“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).

“Permitted Acquisitions” means non-hostile acquisitions (by merger, amalgamation, purchase or otherwise) by the Parent or any of its Restricted Subsidiaries of all or substantially all of the assets of, or all of the shares of the capital stock or other Equity Interests in, a Person or division or line of business of a Person engaged in the same business as the Company and its Subsidiaries or in a related business, provided that immediately after giving effect thereto: (i) except for Permitted Joint Ventures, 100% (less the amount of such capital stock or other Equity Interests, if any, not exceeding 5% in the aggregate thereof, attributable to director qualifying shares, shares required by the jurisdiction of organization of such Person to be held by management or other third party and such additional shares the current ownership of which, at the time of such Permitted Acquisition, cannot, after commercially reasonable efforts by the Credit Parties (which efforts shall not require any Credit Party to make any payment or grant any right to the holder of such Equity Interests or any other Person), be identified or acquired) of the outstanding capital stock or other Equity Interests of any acquired or newly formed corporation or other entity that acquires such Person, division or line of business is owned directly by the Parent or any of its Restricted Subsidiaries; (ii) any such capital stock or other Equity Interests acquired by a Credit Party shall be duly and validly pledged to the Collateral Agent for the ratable benefit of the Lenders (other than any capital stock of, or other Equity Interests in, any Subsidiary that is not required to be so pledged pursuant to Section 8.10); (iii) the Company causes any such corporation or other entity to comply with Section 8.10, if such Section is applicable; (iv) any such corporation or other entity is not liable for and the Parent and its Restricted Subsidiaries do not assume any Indebtedness (except for Indebtedness permitted pursuant to Section 9.2); and (v) no Default or Event of Default shall have occurred and be continuing and the Company shall have delivered to the Administrative Agent an officers’ certificate to such effect, together with all relevant material financial information for such corporation or other entity or acquired assets.

“Permitted Affiliate Transactions” means any of the following: (a) customary directors’ fees, customary directors’ indemnifications and similar arrangements for officers and directors of the Parent and its Restricted Subsidiaries entered into in the ordinary course of business, together with any payments made under any such indemnification arrangements; (b) customary and reasonable loans, advances and reimbursements to officers, directors and employees of the Parent and its Restricted Subsidiaries for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business; (c) the incurrence of intercompany Indebtedness permitted pursuant to Section 9.2(b) and Contingent Obligations permitted pursuant to Section 9.2(k); (d) employment agreements and arrangements entered into with directors, officers and employees of the Parent and its Restricted Subsidiaries in the ordinary course of business; and (e) Restricted Payments permitted by Section 9.9.

“Permitted Business” means either (i) gathering, transporting, compressing, treating, processing, marketing, distributing, storing or otherwise handling Crude Oil, Natural Gas Liquids and/or Refined Petroleum Products, or activities or services reasonably related or ancillary thereto, including water treatment, disposal and transportation, and entering into Swap Obligations relating to any of the foregoing activities, or (ii) any other business that generates gross income at least 90% of which constitutes “qualifying income” under Section 7704(d) of the Code.

“Permitted Discretion” means a determination made in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.

“Permitted Holder” means X. Xxxxxxx Xxxxxxxx and each Krimbill Party, so long as such Krimbill Party is controlled, directly or indirectly, by X. Xxxxxxx Xxxxxxxx.

“Permitted Joint Ventures” means acquisitions (by merger, amalgamation, purchase, formation of partnership, joint venture or otherwise) by a Credit Party not constituting Permitted Acquisitions of interests in any of the assets of, or shares of the capital stock of or other Equity Interests in, a Person or division or line of business of a Person engaged in the same business as the Credit Parties or in a related business, provided that immediately after giving effect thereto: (i) any outstanding capital stock or other Equity Interests of any acquired or newly formed corporation or other entity owned directly by a Credit Party is duly and validly pledged to the Collateral Agent for the ratable benefit of the Lenders if and to the extent required to be so pledged pursuant to the definition of “Pledge and Security Agreement” or pursuant to Section 8.10; and (ii) no Default or Event of Default shall have occurred and be continuing, and the Company shall have delivered to the Administrative Agent an officers’ certificate to such effect, together with all relevant material financial information for such corporation or other entity or acquired assets to the extent reasonably requested by the Administrative Agent.

“Permitted Liens” means any Liens permitted under Section 9.3.

“Permitted Refinancing Indebtedness” has the meaning specified in the definition of “Permitted Refinancings”.

“Permitted Refinancings” means any refinancings, restructurings, refundings, renewals, extensions or replacements of Indebtedness from time to time or at any time, in whole or in part, at the same time or at different times (any such refinancing, restructuring, refunding, renewal, extension or replacement Indebtedness, the “Permitted Refinancing Indebtedness” and the Indebtedness being so refinanced, restructured, refunded, renewed, extended or replaced, the “Refinanced Indebtedness”) permitted hereunder; provided that (i) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Indebtedness (plus unpaid accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses incurred in connection therewith), (ii) the Weighted Average Life to Maturity of such Permitted Refinancing Indebtedness is not shorter than the Weighted Average Life to Maturity of the Refinanced Indebtedness and the maturity of such Permitted Refinancing Indebtedness is not earlier than the Refinanced Indebtedness, (iii) if the Refinanced Indebtedness is contractually subordinated in right of payment to the Obligations, such Permitted Refinancing Indebtedness is contractually subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders, in all material respects, as those contained in the documentation governing the Refinanced Indebtedness, taken as a whole, (iv) no Permitted Refinancing Indebtedness shall have additional obligors than the Refinanced Indebtedness; provided that a Restricted Subsidiary that becomes a Guarantor may guarantee Permitted Refinancing Indebtedness incurred by any Credit Party, regardless of whether such Restricted Subsidiary was an obligor of the Refinanced Indebtedness, (v) except to the extent that the Liens securing such Refinancing Indebtedness are permitted pursuant to Section 9.3, such Permitted Refinancing Indebtedness shall be unsecured if the Refinanced Indebtedness is unsecured, (vi) if such Indebtedness was secured, such Permitted Refinancing Indebtedness is not secured by any additional property or collateral other than (A) property or collateral securing the Refinanced Indebtedness, (B) after-acquired property that is affixed or incorporated into the property covered by the Lien securing such Permitted Refinancing Indebtedness and (C) proceeds and products thereof and (vi) such Permitted Refinancing Indebtedness has covenants and default and remedy provisions that are, taken as a whole, not materially less favorable to the Credit Parties than then current market terms for the applicable type of Indebtedness.

“Permitted Transaction” has the meaning set forth in Section 5.25(b).

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

“Plan” means any employee pension benefit plan as defined in Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.

“Platform” has the meaning specified in Section 8.2.

“Pledge and Security Agreement” means the Pledge and Security Agreement dated as of the date hereof, among the Company, the other Credit Parties from time to time party thereto and the Collateral Agent for the ratable benefit of the Secured Parties, a copy of which is attached as Exhibit C-2 hereto, as the same may be amended, modified or supplemented in accordance with its terms from time to time.

“Pledge and Security Agreements” means the collective reference to the Pledge and Security Agreement, the Canadian Pledge and Security Agreement and any other pledge agreement or security agreement entered into by a Credit Party and the Collateral Agent (on substantially the same terms as the Pledge and Security Agreement) in accordance with Section 8.10.

“Pledged Collateral” has the meaning specified for the term “Collateral” in the Pledge and Security Agreement.

“PPSA” means the Personal Property Security Act (Alberta), including the regulations thereto, as amended from time to time, and any other similar legislation of any Canadian province or territory; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest or other Lien on any Collateral is governed by the personal property security legislation or other applicable legislation with respect to personal property security in effect in a jurisdiction in Canada other than the Province of Alberta (including the Civil Code of Québec), “PPSA” shall refer instead to such other applicable federal, provincial or territorial legislation pertaining to the granting, perfecting, opposability, priority, ranking or enforcement of Liens on personal or movable property, and any successor statutes, together with any regulations thereunder, in each case as in effect from time to time.

“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.

“Proceeding” means any claim, litigation, investigation, action, suit, arbitration or administrative, judicial or regulatory action or proceeding in any jurisdiction.

“Proceeds” means (a) all “proceeds”, as defined in Article 9 of the UCC or the PPSA, as applicable, with respect to the Collateral, and (b) whatever is recoverable or recovered when any Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or involuntarily, including, without limitation, all proceeds of insurance policy covering the Collateral.

“Proceeds of Crime Act” means the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), as amended from time to time, and including all regulations thereunder.

“Product” means physical energy commodities, including Crude Oil, Natural Gas Liquids, asphalt, Refined Petroleum Products, Renewable Products and Eligible RIN Inventory.

“Product Inventory” means Inventory consisting of Product.

“Product Inventory Letter of Credit” means a Letter of Credit issued in connection with the transportation or purchase of Product Inventory of any Credit Party.

“Projections” has the meaning assigned to it in Section 8.16.

“Protective Advances” has the meaning specified in Section 2.8(a).

“Public Lender” has the meaning specified in Section 8.2.

“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 assigned to it in Section 12.18(b).

“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of the relevant security interest becomes or would become effective with respect to such Swap Obligation or such other Person constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder 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.

“Ratio Debt” has the meaning assigned to it in Section 9.2(r).

“Real Property” means, with respect to any Person, all of the right, title and interest of such Person in and to land, with the improvements and fixtures thereon, including Leaseholds and any easements or rights-of way.

“Reference Time” with respect to any setting of the then-current Benchmark means (a) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two (2) Business Days preceding the date of such setting, (b) if such Benchmark is the Daily Simple SOFR, then four (4) Business Days prior to such setting and (c) if such Benchmark is none of the Term SOFR Rate or Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable discretion.

“Refinanced Indebtedness” has the meaning specified in the definition of “Permitted Refinancings”.

“Refinancing” has the meaning specified in the Fifth Amendment.

“Refined Petroleum Products” means product from the refining of crude oil, including diesel fuel, gasoline, jet fuel and other heavier fuel oils but excluding Natural Gas Liquids.

“Register” has the meaning specified in Section 12.6(b)(iv).

“Related Document” means any agreement, certificate, document or instrument relating to a Letter of Credit.

“Related Parties” means each Lender-Related Person or Agent-Related Person, as applicable.

“Relevant Governmental Body” means the Board or the NYFRB, the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the Board and/or the NYFRB or, in each case, any successor thereto.

“Relevant Rate” means (a) with respect to any Term Benchmark Borrowing, the Adjusted Term SOFR Rate or (b) with respect to any RFR Borrowing, the Adjusted Daily Simple SOFR, as applicable.

“Renewable Products” means fuels produced from renewable resources, including biodiesel and ethanol.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder.

“Requested Release” has the meaning set forth in Section 5.25(b).

“Required Lenders” means, at a particular time, and subject to Section 5.24(b), Lenders that hold more than 66 2/3% of the sum of (i) the Revolving Credit Commitments or, if the Revolving Credit Commitments have been cancelled, the sum of (A) the aggregate then outstanding principal amount of the Revolving Credit Loans, plus (B) the L/C Participating Interests in the aggregate amount then available to be drawn under all outstanding Letters of Credit, plus (C) the aggregate then outstanding principal amount of Revolving L/C Obligations, plus (D) the aggregate amount represented by the agreements of the Lenders in Sections 2.8(a) and (b) with respect to the Protective Advances then outstanding and (ii) from and after any applicable Incremental Facility Closing Date, the related Revolving Credit Commitments Increases or, if the Revolving Credit Commitments Increases have been cancelled, the aggregate then outstanding principal amount of the related Incremental Revolving Credit Loans; provided that at any time there are fewer than three Lenders (who are not Affiliates of one another or Defaulting Lenders) party to this Agreement, the definition of “Required Lenders” shall be “all Lenders”.

“Requirement of Law” means, as to any Person, the Organization Documents of such Person, and any Law (including, without limitation, Environmental Laws), in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“Reserves” means, on any date of determination, the sum of the following reserves established by the Administrative Agent (and determined without duplication):

(a) in the case of Designated Cash Management Obligations, the aggregate exposure on such date of all Cash Management Banks under all Designated Cash Management Obligations, based on the most recent exposure notified to the Administrative Agent by the relevant Cash Management Banks and the Company; plus

(b) in the case of Designated Swap Obligations, the aggregate mark-to-market termination exposure (after giving effect to applicable netting arrangements) on such date of all Hedge Banks under all Designated Swap Obligations, based on the most recent mark-to-market termination exposure notified to the Administrative Agent by the relevant Hedge Banks and the Company; plus

(c) in the case of Eligible Accounts, reserves established by the Administrative Agent in its Permitted Discretion for dilution, for uninsured, underinsured, un-indemnified or under-indemnified liabilities or potential liabilities with respect to any litigation and for taxes, fees, assessments and other governmental charges; plus

(d) in the case of Eligible Inventory, reserves established by the Administrative Agent in its Permitted Discretion for volatility, for Inventory shrinkage, for First Purchaser Liens, for customs charges and shipping charges related to any Inventory in transit, for rent at locations leased by the Company, for consignee’s, warehousemen’s and bailee’s charges, for uninsured losses, for uninsured, underinsured, un-indemnified or under-indemnified liabilities or potential liabilities with respect to any litigation, for taxes, fees, assessments, and other governmental charges and for retention of title or similar arrangements; plus

(e) the Canadian Priority Payable Reserve; plus

(f) other reserves established by the Administrative Agent in its Permitted Discretion.

The amount of any such reserve or change shall have a reasonable relationship to the event, condition or other matter that is the basis for such reserve or such change, and no reserves or changes shall be duplicative of reserves or changes already accounted for through eligibility criteria. Reserves may only be established by the Administrative Agent, acting in its Permitted Discretion, upon at least three (3) Business Days’ prior written notice to the Company (which notice shall include a reasonably detailed description of such reserve being established or modified and the basis for such reserve or modification); provided that no such notice shall be required (x) if an Event of Default has occurred or is continuing, (y) for changes to any reserves resulting solely by virtue of mathematical calculations of the amount of the reserve in accordance with the methodology of calculation previously utilized (such as, but not limited to, rent and customer credit liabilities), or (z) for changes to reserves or establishment of additional reserves if a Material Adverse Effect has occurred or it would be reasonably likely that a Material Adverse Effect would occur were such reserve not changed or established prior to the three (3) Business Day period. During any such applicable three (3) Business Day period, the Administrative Agent shall, if requested, discuss any such reserve or change with the Company and the Company may take such action as may be required so that the event, condition or matter that is the basis for such reserve or change no longer exists or exists in a manner that would result in the establishment of a lower reserve or result in a lesser change, in each case, in a manner and to the extent reasonably satisfactory to the Administrative Agent.

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

“Responsible Officer” means the chief executive officer or the chief operating officer of the Company or, with respect to financial matters, the chief financial officer, controller, vice president – finance or treasurer of the Company.

“Restricted Cash” means cash and Cash Equivalents that are contractually restricted from being distributed to the Borrower or that is subject to any Lien, other than the Liens created by the Credit Documents, nonconsensual Liens permitted by Section 9.3 and Liens permitted by Sections 9.3(p), 9.3(v), 9.3(w), 9.3(y) and 9.3(aa) (with respect to Section 9.3(aa), only to the extent the Obligations are secured by such cash and Cash Equivalents on a first priority basis).

“Restricted Indebtedness” means (a) the Fixed Debt and (b) other Indebtedness for borrowed money or obligations evidenced by notes, bonds, debentures or other similar instruments that in each case are unsecured or are otherwise subordinated in right of payment to the Obligations or the obligations under the Fixed Debt.

“Restricted Indebtedness Payments” has the meaning assigned to it in Section 9.12(a).

“Restricted Payments” has the meaning assigned to it in Section 9.9.

“Restricted Subsidiary” means each Subsidiary other than an Unrestricted Subsidiary.

“Revaluation Date” means, with respect to any Letter of Credit denominated in Canadian dollars, each of the following: (i) each date of issuance of such Letter of Credit, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by the Issuing Lender under such Letter of Credit denominated in an Alternative Currency and (iv) such additional dates as the Issuing Lender shall determine.

“Revolving Credit Commitment” means, as to any Lender, its obligations to make Revolving Credit Loans to the Company pursuant to Section 2.1, to purchase its L/C Participating Interest in any Letter of Credit and to purchase participations in Protective Advances and Swingline Loans in an aggregate amount not to exceed at any time the amount set forth opposite such Xxxxxx’s name in Schedule 1A under the heading “Revolving Credit Commitment” and in an aggregate amount not to exceed at any time the amount equal to such Xxxxxx’s Revolving Credit Commitment Percentage of the aggregate Revolving Credit Commitments, as the aggregate Revolving Credit Commitments may be reduced or adjusted from time to time pursuant to this Agreement (including, without limitation, increases pursuant to Article 3); collectively, as to all the Lenders, the “Revolving Credit Commitments”. On the Fifth Amendment Effective Date, the aggregate amount of the Revolving Credit Commitments is $600,000,000.

“Revolving Credit Commitment Increase” has the meaning specified in Section 3.1.

“Revolving Credit Commitment Percentage” means, as to any Lender at any time, the percentage which such Xxxxxx’s Revolving Credit Commitment constitutes of all of the Revolving Credit Commitments (or, if the Revolving Credit Commitments shall have been terminated, the percentage of the outstanding Aggregate Revolving Credit Extensions of Credit and Protective Advances constituted by such Xxxxxx’s Aggregate Revolving Credit Extensions of Credit and participating interest in Protective Advances).

“Revolving Credit Commitment Period” means the period from and including the Closing Date to but not including the Revolving Credit Termination Date.

“Revolving Credit Lenders” means the Lenders with Revolving Credit Commitments and/or outstanding Revolving Credit Loans.

“Revolving Credit Loan” and “Revolving Credit Loans” has the meaning specified in Section 2.1(a), and shall include Protective Advances made pursuant to Section 2.8.

“Revolving Credit Termination Date” means, the earliest of (i) the Scheduled Termination Date; (ii) any other date on which the Revolving Credit Commitments shall terminate hereunder; and (iii) the date that is 91 days prior to the earliest maturity date in respect of any Indebtedness of Parent, the Company or any of Company’s Restricted Subsidiaries for borrowed money or obligations evidenced by notes, bonds, debentures or other similar instruments (other than intercompany indebtedness and the Class D Preferred Units) (for purposes of this definition, the “Springing Indebtedness”) unless as of such 91^stday (A)(I) there is no more than $50,000,000 outstanding principal amount of applicable Springing Indebtedness (or Permitted Refinancing Indebtedness thereof) with a maturity that is earlier than 91 days after the Scheduled Termination Date or (II) the Company has deposited funds equal, at all times thereafter, to the then outstanding principal amount of applicable Springing Indebtedness (or Permitted Refinancing Indebtedness thereof) less $50,000,000 into the Material Debt Reserve Account or (B) the Company has received a binding commitment to refinance all of the outstanding applicable Springing Indebtedness on or prior to the maturity date of the applicable Springing Indebtedness (subject only to reasonable and customary conditions acceptable to the Administrative Agent) and such refinancing Indebtedness is permitted by this Agreement and matures no earlier than 91 days after the Scheduled Termination Date. For purposes of this Agreement, any Springing Indebtedness defeased in accordance with any indenture or other agreement or instrument evidencing or governing such Indebtedness shall not be deemed to be outstanding for purposes of the “Revolving Credit Termination Date” so long as any prepayments made to defease such Springing Indebtedness are permitted by this Agreement.

“Revolving L/C Obligations” means the obligations of the Company to reimburse the Issuing Lender for any payments made by an Issuing Lender under any Letter of Credit that have not been reimbursed by the Company pursuant to Section 2.6.

“RFR Borrowing” means, as to any borrowing of Loans, the RFR Loans comprising of such borrowing.

“RFR Lending Office” means the office of each Lender which shall be making or maintaining its RFR Loans.

“RFR Loan” means a Loan that bears interest at a rate based on the Adjusted Daily Simple SOFR.

“RFS” means the Renewable Fuel Standard of the United States Environmental Protection Agency in accordance with according to the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007.

“RIN” means renewable identification number assigned for the purpose of tracking the production, use and trading of renewable fuels as required by, and which are valid for purposes of satisfying the compliance requirements of the RFS.

“RIN Inventory Excess” means, with respect to any RIN type at any time, the total volumetric quantity of such RIN type (comprised of the aggregate Attached RINs and Detached RINs of such RIN type) owned by the Credit Parties at such time as determined by reference to the records of the Credit Parties, less the total volumetric quantity of such RIN type (comprised of the aggregate Attached RINs and Detached RINs of such RIN type) determined to be available to the Credit Parties per the EPA Moderated Tracking System at such time.

“RIN Inventory Excess Amount” means, with respect to any RIN type at any time, the “Market Value” of the RIN Inventory Excess that qualifies as Eligible Detached RINs at such time.

“RIN Inventory Excess Setoff” means, at any time, an amount equal to the excess of all RIN Inventory Excess Amounts at such time, less $10,000,000; provided that the RIN Inventory Excess Setoff shall not be less than zero at any time.

“Risk Management Policy” means policies, operating procedures and limits of the Parent and its Subsidiaries designed to minimize the firm’s financial exposure to various risks as noted in the policies attached as Schedule 1D as approved by the board of directors (or other equivalent governing body) of the Parent, and as set forth on Schedule 1D as modified from time to time.

“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of McGraw Hill Financial Inc., and any successor thereto.

“Sale and Leaseback Obligation” has the meaning specified in Section 10.1(e).

“Sale and Leaseback Transaction” has the meaning specified in Section 9.16.

“Same Day Funds” means immediately available funds.

“Sanctioned Country” means at any time, a country or territory (or government of a country or territory or an agency thereof), an organization controlled by any of the foregoing or person resident of a country, region or territory which, in each case, is itself the subject or target of any Sanctions (as of the Fifth Amendment Effective Date, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea, Zaporizhzia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, and Syria).

“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, His Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, or otherwise a target of Sanctions, (b) any Person operating, organized or resident in a Sanctioned Country or territory, (c) any Person who is directly or indirectly owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), (d) any Person that is a Canadian Blocked Person or (e) any Person otherwise the subject of any Sanctions.

“Sanctions” means all economic, financial, trade, sectoral or secondary sanctions, embargoes anti-terrorism laws and other similar laws and regulations, rules, decisions imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) the United Nations Security Council, the European Union, any European Union member state, His Majesty’s Treasury of the United Kingdom (c) the federal government of Canada and (d) any other relevant sanctions authority.

“Scheduled Termination Date” means date which is the fifth anniversary of the Fifth Amendment Effective Date; provided that notwithstanding Section 1.7, if such date is not a Business Day, the Scheduled Termination Date shall be the next preceding Business Day.

“Second Amendment Effective Date” means April 13, 2022.

“Second Currency” has the meaning specified in Section 12.20.

“Secured 2029 Notes” means the Company’s and NGL Energy Finance Corp.’s 8.125% senior secured notes due 2029.

“Secured 2032 Notes” means the Company’s and NGL Energy Finance Corp.’s 8.375% senior secured notes due 2032.

“Secured Notes” means, collectively, the Secured 2029 Notes and the Secured 2032 Notes.

“Secured Notes Indenture” means the Indenture, dated as of February 2, 2024, among U.S. Bank National Association as trustee, the Company, NGL Energy Finance Corp. and each of the guarantors party thereto from time to time, pursuant to which the Company and NGL Energy Finance Corp. issued the Secured 2029 Notes and the Secured 2032 Notes.

“Secured Parties” means, collectively, the Agents, the Lenders, the Issuing Lender, each Hedge Bank party to any Swap Contract, to the extent the obligations thereunder constitute Finance Obligations, each provider of Cash Management Services to the extent the obligations thereof under the Cash Management Agreement to which it is a party constitute Finance Obligations and any other Persons the obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents, and the successors and assigns of each of the foregoing.

“Settlement” has the meaning assigned to it in Section 2.09(c).

“Settlement Date” has the meaning assigned to such term in Section 2.09(c).

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

“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day.

“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).

“SOFR Administrator’s Website” means the NYFRB’s Website, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

“SOFR Rate Day” has the meaning assigned to it under the definition of “Daily Simple SOFR”.

“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (i) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (ii) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (iii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (iv) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“Specified Asset Sales” means any sales or other dispositions of any Real Property (or the Equity Interests of the Restricted Subsidiaries owning such Real Property), which sales or dispositions have an aggregate sales price of less than $75,000,000 and such transaction is consummated no later than March 31, 2024.

“Specified Letter of Credit” means that certain Irrevocable Standby Letter of Credit, dated as of the Closing Date and with a date of expiry of June 29, 2022, issued by JPMCB in its capacity as an Issuing Lender in favor of BNP Paribas as beneficiary.

“Specified Representations” means those representations and warranties of the Parent and the Company in Sections 6.1(i) (solely as to the Company and the other Credit Parties), 6.2, 6.4 (to the extent relating to the performance of the Credit Documents and the use of the proceeds of the Loans and drawings under the Letters of Credit), 6.7, 6.18, 6.20(e) (with respect to the creation, validity and perfection of the security interest in the Collateral to the extent required hereunder and under the Collateral Documents) and 6.24.

“Specified Trigger” means Availability is less than the greater of (i) $75,000,000 and (ii) 15.0% of the Line Cap.

“Specified Trigger Event” means any time that (a) a Specified Trigger shall have occurred or (b) an Event of Default has occurred and is continuing. Once commenced, a Specified Trigger Event shall be deemed to be continuing until such time as (i) no Event of Default is continuing and (ii) if such Specified Trigger Event resulted from an event specified in the preceding clause (a), Availability equals or exceeds for thirty (30) consecutive days the greater of (A) $75,000,000 and (B) 15.0% of the Line Cap then in effect.

“Spot Rate” for the rate determined by the Administrative Agent or the Issuing Lender, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of Canadian dollars with Dollars through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the Issuing Lender may obtain such spot rate from another financial institution designated by the Administrative Agent or the Issuing Lender if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that the Issuing Lender may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in Canadian dollars.

“Subject Transaction” means any Investment, Permitted Acquisition, disposition, incurrence or repayment of Indebtedness, Restricted Payment or Subsidiary designation in respect of which the terms of this Agreement require any test to be calculated on a “pro forma basis” or after giving “pro forma effect”.

“Subsidiary” means, as to any Person, a corporation, partnership or other entity of which shares of capital stock or other Equity Interests having ordinary voting power (other than capital stock or other equity interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, directly or indirectly, or the management of which is otherwise controlled, directly or indirectly, or both, by such Person. Unless the context otherwise requires, the term “Subsidiary” means a Subsidiary of the Parent.

“Supported QFC” has the meaning assigned to it in Section 12.18.

“Swap Contract” means (i) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Swap Obligation” of any Person means all obligations (including, without limitation, any amounts which accrue after the commencement of any bankruptcy or insolvency proceeding with respect to such Person, whether or not allowed or allowable as a claim under any proceeding under any Debtor Relief Law) of such Person owing to a Hedge Bank in respect of any Swap Contract, excluding any amounts which such Person is entitled to set-off against its obligations under applicable law.

“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Revolving Credit Commitment Percentage of the total Swingline Exposure at such time.

“Swingline Lender” means JPMCB, in its capacity as lender of Swingline Loans hereunder. Any consent required of the Administrative Agent or the Issuing Lender shall be deemed to be required of the Swingline Lender and any consent given by JPMCB in its capacity as Administrative Agent or Issuing Lender shall be deemed given by JPMCB in its capacity as Swingline Lender.

“Swingline Loan” has the meaning assigned to it in Section 2.09(a).

“Synthetic Lease” means any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which lease or other arrangement is required or is permitted to be classified and accounted for as an operating lease under GAAP but which is intended by the parties thereto for tax, bankruptcy, regulatory, commercial law, real estate law and all other purposes as a financing arrangement.

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

“Term Benchmark” when used in reference to any Loan or borrowing of Loans, refers to whether such Loan, or the Loans comprising such borrowing of Loans, are bearing interest at a rate determined by the reference to the Adjusted Term SOFR Rate.

“Term Benchmark Borrowing” means, as to any borrowing of Loans, the Term Benchmark Loans comprising of such borrowing.

“Term Benchmark Lending Office” means the office of each Lender which shall be making or maintaining its Term Benchmark Loans.

“Term Benchmark Loan” means a Loan that bears interest at a rate based on the Adjusted Term SOFR Rate.

“Term Loan Agreement” means that Term Loan Credit Agreement, dated as of February 2, 2024, among the Parent, the Company, the lenders from time to time party thereto, Toronto Dominion (Texas) LLC, as administrative agent, and the Term Loan Collateral Agent.

“Term Loan Collateral Agent” means Toronto Dominion (Texas) LLC, in its capacity as collateral agent under the Term Loan Agreement, or any permitted successor collateral agent thereunder.

“Term Loans” means loans outstanding under the Term Loan Agreement.

“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Term SOFR Determination Day” has the meaning assigned to it under the definition of “Term SOFR Reference Rate”.

“Term SOFR Rate” means, with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two (2) U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.

“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 p.m. (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) Business Days prior to such Term SOFR Determination Day.

“Third Amendment Effective Date” means February 16, 2023.

“Type” means, as to any Loan, its nature, or classification, as an ABR Loan, Term Benchmark Loan or RFR Loan.

“UCC” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

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

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

“Unfinanced Capital Expenditures” means, with respect to any Person and for any period, Capital Expenditures made by such Person during such period and not financed from the proceeds of Indebtedness (other than, for the avoidance of doubt, Loans), the proceeds of any issuance of Equity Interests or the proceeds of any Asset Sale.

“Unmatured Surviving Obligations” means, at any date, contingent indemnification or expense reimbursement claims which are not then due and payable or with respect to which no demand has been made.

“Unrestricted Subsidiaries” means (a) any Subsidiary designated as such on Schedule 6.11 as of the Closing Date, (b) any Subsidiary that is formed or acquired after the Closing Date and is designated subsequent to the Closing Date as an Unrestricted Subsidiary by the Company in accordance with Section 8.19 and (c) any Subsidiary of an Unrestricted Subsidiary.

“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for the purposes of trading in United States government securities.

“U.S. Person” means a “United States Person” as defined in Section 7701(a)(30) of the Code.

“U.S. Special Resolution Regime” has the meaning assigned to it in Section 12.18(b).

“U.S. Tax Compliance Certificate” has the meaning specified in Section 5.23(g)(ii)(B)(III).

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years (and/or portion thereof) obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

“Wholly-Owned Domestic Subsidiary” means at any date a Wholly-Owned Subsidiary of the Company which is a Domestic Subsidiary at such date, and “Wholly-Owned Domestic Subsidiaries” means all of them, collectively.

“Wholly-Owned Subsidiary” means, with respect to any Person at any date, any Subsidiary of such Person all of the shares of capital stock or other ownership interests of which (except directors’ qualifying shares) are at the time directly or indirectly owned by such Person.

“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan Section 4201 of ERISA.

“Withholding Agent” has the meaning assigned to it in Section 5.23(a).

“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

1.3

Other Definitional Provisions

(a)

Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any other Credit Document or any certificate or other document made or delivered pursuant hereto.

(b)

As used herein and in any other Credit Document and any certificate or other document made or delivered pursuant hereto, accounting terms relating to the Company and its Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1 to the extent not defined, shall have the respective meanings given to them under GAAP. If any Credit Party is required after Closing Date to implement any change(s) in its accounting principles and practice as a result of any changes in GAAP mandated by the Financial Accounting Standards Board or successor organization, and if such change(s) result in any material change in the method of calculation of the Fixed Charge Coverage Ratio or any other financial test provided herein or any other Credit Document, then for all periods after the date of implementation of such change(s) until one or more appropriate amendments of this Agreement addressing such change(s) in GAAP are negotiated, executed and delivered by the Parent, the Company and the number of Lenders required by Section 12.1 in a form acceptable to all such parties, the Fixed Charge Coverage Ratio and or any other financial test provided herein or any other Credit Document, as applicable, shall be calculated hereunder utilizing GAAP as in effect prior to such change(s).

(c)

Unless otherwise expressly provided, any accounting concept and all financial covenants shall be determined on a consolidated basis for the Credit Parties, and financial measurements shall be computed without duplication.

(d)

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

(e)

Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (v) any reference to any law, rule or regulation herein shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified or supplemented from time to time and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(f)

For purposes of any Collateral located in the Province of Québec or charged by any deed of hypothec (or any other Credit Document governed by the laws of the Province of Québec) and for all other purposes pursuant to which the interpretation or construction of a Credit Document may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (a) “personal property” shall be deemed to include “movable property”, (b) “real property” shall be deemed to include “immovable property”, (c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property” shall be deemed to include “incorporeal property”, (e) “security interest” and “mortgage” shall be deemed to include a “hypothec”, (f) all references to filing, registering or recording under the UCC or the PPSA shall be deemed to include publication under the Civil Code of Québec, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (h) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (i) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, and (j) an “agent” shall be deemed to include a “mandatary”.

1.4

Divisions

For all purposes under the Credit 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 and acquired on the first date of its existence by the holders of its Equity Interests at such time.

1.5

Interest Rates; Benchmark Notifications

The interest rate on a Loan denominated in Dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 5.17(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Company. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Company, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

1.6

Pro Forma Basis; Limited Condition Transactions.

(a) Notwithstanding anything to the contrary contained herein, financial ratios and tests calculated pursuant to this Agreement, or calculated pursuant to any other agreement that are calculated with reference to (including that have as their numerator or denominator) defined terms set forth in this Agreement, in each case, including the Consolidated Net Leverage Ratio, the Fixed Charge Coverage Ratio, the amount of Consolidated Total Assets and Consolidated EBITDA, shall be calculated in the manner prescribed by this Section 1.6.

(b) All Subject Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test: (i) income statement items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction, (A) in the case of a disposition of all or substantially all Equity Interests in any Subsidiary of the Company or any division, product line, or facility used for operations of the Company or any of its Subsidiaries, shall be excluded and (B) in the case of a Permitted Acquisition or Investment described in the definition of “Subject Transaction,” shall be included, (ii) any retirement of Indebtedness, and (iii) any Indebtedness incurred or assumed by the Company or any of the Restricted Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided that the foregoing pro forma adjustments may be applied to any such test solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to events (including operating expense reductions) that are (as determined by the Company in good faith) (x) directly attributable to such transaction, (y) expected to have a continuing impact on the Company and the Restricted Subsidiaries and (z) factually supportable; and (II) in determining pro forma compliance with the Consolidated Net Leverage Ratio or the Fixed Charge Coverage Ratio or any other financial ratio (other than in respect of Section 9.1), in connection with the incurrence (including by assumption or guarantee) of any Indebtedness, (x) the incurrence or repayment of any Indebtedness in respect of the any revolving credit facility included in the Consolidated Net Leverage Ratio or the Fixed Charge Coverage Ratio or such other incurrence test calculation immediately prior to, or simultaneously with, the event for which the pro forma compliance determination of such ratio or other test is being made, shall be disregarded, (y) the cash proceeds of any Indebtedness shall be excluded from “net” Indebtedness in determining whether such Indebtedness can be incurred (provided that the use of proceeds thereof shall be included) and (z) with respect to any delayed draw term commitments, the Company may elect to test the relevant incurrence test either at the time such commitments are established (assuming such commitments are fully drawn) or at the time loans incurred under such commitments are incurred; provided, further, that with respect to any incurrence of Indebtedness permitted by the provisions of this Agreement in reliance on the pro forma calculation of the Consolidated Net Leverage Ratio or the Fixed Charge Coverage Ratio, any Indebtedness being incurred (or expected to be incurred) substantially simultaneously or contemporaneously with the incurrence of any such Indebtedness in reliance on any “basket” set forth in this Agreement (including any “baskets” measured as a percentage of Consolidated Total Assets or Consolidated EBITDA) including any revolving credit facility shall be disregarded. In the event any fixed “baskets” are intended to be utilized together with any incurrence-based “baskets” in a single transaction or series of related transactions, (x) compliance with or satisfaction of any applicable financial ratios or tests for the portion of Indebtedness or any other applicable transaction or action to be incurred under any incurrence-based “baskets” shall first be calculated without giving effect to amounts being utilized pursuant to any fixed “baskets”, but giving full pro forma effect to all applicable and related transactions (including, subject to the foregoing with respect to fixed “baskets”, any incurrence and repayments of Indebtedness) (except that the incurrence of any Indebtedness under any revolving credit facility prior to or in connection therewith shall be disregarded), and (y) thereafter, incurrence of the portion of such Indebtedness or other applicable transaction or action to be incurred under any fixed “baskets” shall be calculated.

(c) In the event that the Parent or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of the Consolidated Net Leverage Ratio or the Fixed Charge Coverage Ratio or any other financial ratio (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), (a) during the applicable Measurement Period and (b) subsequent to the end of the applicable Measurement Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Consolidated Net Leverage Ratio and the Fixed Charge Coverage Ratio or such other financial ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the first day of the applicable Measurement Period.

(d) In connection with determining whether any Limited Condition Transaction is permitted hereunder, for which determination requires the calculation of any financial ratio, test or basket, each calculated on a pro forma basis, at the option of the Company (the Company’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination shall be deemed to be (a) the date the definitive agreement for such Limited Condition Transaction is entered into, (b) in the case of a Limited Condition Transaction described in clause (i) of the definition thereof, if such Limited Condition Transaction will not be consummated prior to the date that is 90 days after the date of such definitive agreement, then on the date that is 91 days after the date of such definitive agreement (provided that such transaction shall no longer constitute a Limited Condition Transaction if it is not consummated within 180 days after the date of such definitive agreement) or (c) in the case of a Limited Condition Transaction described in clause (ii) of the definition thereof, if such Limited Condition Transaction will not be consummated prior to the date that is 30 days after the date of such definitive agreement, then on the date that is 31 days after the date of such definitive agreement (provided that such transaction shall no longer constitute a Limited Condition Transaction if it is not consummated within 60 days after the date of such definitive agreement) (as applicable, the “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Transaction, such Limited Condition Transaction would have been permitted on the relevant LCT Test Date in compliance with such provision. For the avoidance of doubt, if the Company has made an LCT Election, (1) if any of the ratios, tests or baskets for which compliance was determined or tested as of an LCT Test Date would at any time after such LCT Test Date have been exceeded or otherwise failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA of the Credit Parties, such baskets, tests or ratios will not be deemed to have been exceeded or failed to have been complied with as a result of such fluctuations (and no Default or Event of Default shall be deemed to have occurred due to such failure to comply), and (2) in calculating the availability under any ratio, test or basket in connection with any action or transaction unrelated to such Limited Conditional Transaction following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated and the date that the definitive agreement or date for redemption, purchase or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, as applicable, without consummation of such Limited Condition Transaction, any such ratio, test or basket shall be determined or tested giving pro forma effect to such Limited Condition Transaction.

1.7

Performance.

When payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.

1.8

Additional Alternative Currencies.

(a)

The Company may from time to time request that Letters of Credit be issued in Canadian dollars; provided that such request shall be subject to the approval of the Administrative Agent and the applicable Issuing Lender and the aggregate amount of Letters of Credit that may be issued in Canadian dollars may not exceed $50,000,000.

(b)

Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

1.9

Exchange Rates; Currency Equivalents

(a)

Without limiting the other terms of this Agreement, the calculations and determinations under this Agreement of any amount (including any amount in any currency other than Dollars) shall be deemed to refer to the Dollar Equivalent thereof and all Borrowing Base Certificates delivered under this Agreement shall express such calculations or determinations in the Dollar Equivalent thereof.

(b)

For purposes of this Agreement and the other Credit Documents, the Dollar Equivalent of the Borrowing Base and any Letters of Credit and other Obligations shall be determined in accordance with the terms of this Agreement. Such Dollar Equivalent shall become effective as of the determination date for the Borrowing Base and for Letters of Credit and other Obligations and shall be the Dollar Equivalent until the next determination date to occur for the Borrowing Base and for such Letters of Credit and other Obligations.

Amount and Terms of Revolving Credit Commitments

2.1

Revolving Credit Commitments

(a)

Subject to the terms and conditions hereof, each Lender agrees to extend credit, in an aggregate amount not to exceed such Xxxxxx’s Revolving Credit Commitment, to the Company from time to time on any Borrowing Date during the Revolving Credit Commitment Period by purchasing an L/C Participating Interest in each Letter of Credit issued by the Issuing Lender and by making loans to the Company (Revolving Credit Loans) from time to time. Revolving Credit Loans shall be denominated in Dollars. Notwithstanding the foregoing and subject to the Administrative Agent’s authority, in its reasonable discretion, to make Protective Advances pursuant to Section 2.8, in no event shall (i) any Revolving Credit Loan be made, or any Letter of Credit be issued, if, after giving effect thereto and the use of proceeds thereof as irrevocably directed by the Company, the sum of the Aggregate Revolving Credit Extensions of Credit would exceed the Line Cap then in effect or (ii) any Revolving Credit Loan be made, or any Letter of Credit be issued, if the amount of such Loan to be made or any Letter of Credit to be issued would, after giving effect to the use of proceeds, if any, thereof, exceed the Available Revolving Credit Commitments. Subject to the foregoing, during the Revolving Credit Commitment Period, the Company may use the Revolving Credit Commitments by borrowing, repaying the Revolving Credit Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof, and/or by having the Issuing Lender issue Letters of Credit, having such Letters of Credit expire undrawn upon or if drawn upon, reimbursing the relevant Issuing Lender for such drawing, and having the Issuing Lender issue new Letters of Credit.

(b)

Each borrowing of Revolving Credit Loans shall be in an aggregate principal amount of the lesser of (i) $1,000,000 or a whole multiple of $1,000,000 in excess thereof, and (ii) the Available Revolving Credit Commitments, except that any borrowing of a Revolving Credit Loan to be used solely to pay the like amount of an L/C Disbursement may be in the principal amount of such L/C Disbursement.

(c)

Any Protective Advance and any Swingline Loan shall be made in accordance with the procedures set forth in Sections 2.08 and 2.09.

2.2

Proceeds of Revolving Credit Loans

The Company shall use the proceeds of Revolving Credit Loans solely for financing the working capital or general corporate purposes of the Parent and its Restricted Subsidiaries (including making payments to an Issuing Lender to reimburse the Issuing Lender for drawings made under the Letters of Credit), including on the Fifth Amendment Effective Date to pay fees and expenses related to the transactions contemplated by the Fifth Amendment and to consummate the Refinancing. Notwithstanding the foregoing, no Credit Party will request any Loans, and no Credit Party shall use, and shall procure that their Subsidiaries and their respective directors, officers, employees and, to the knowledge of any Credit Party, agents, shall not use, the proceeds of any Revolving Credit Loan or Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

2.3

Issuance of Letters of Credit

(a)

Subject to the terms and conditions hereof, the Company may from time to time during the Revolving Credit Commitment Period request any Issuing Lender to issue a Letter of Credit (including a counter-standby Letter of Credit) denominated in Dollars or Canadian dollars by delivering to the Administrative Agent at its address specified in Section 12.2 and the Issuing Lender an L/C Application completed to the satisfaction of the Issuing Lender, together with the proposed form of the Letter of Credit (which shall comply with the applicable requirements of clause (b) below) and such other certificates, documents and other papers and information as the Issuing Lender may reasonably request; provided that if the Issuing Lender informs the Company that it is for any reason unable to open such Letter of Credit, the Company may request another Lender to open such Letter of Credit upon the same terms offered to the initial Issuing Lender and if such other Lender agrees to issue such Letter of Credit each reference to the Issuing Lender for purposes of the Credit Documents shall be deemed to be a reference to such Lender. Letters of Credit shall be denominated in Dollars or Canadian dollars.

(b)

Each Letter of Credit issued hereunder shall, among other things, (i) be in such form requested by the Company as shall be acceptable to the Issuing Lender in its sole discretion and (ii) subject to clause (c) below, have an expiry date occurring not later than the earlier of (A) three hundred and sixty-five (365) days after the date of issuance of such Letter of Credit and (B) five (5) Business Days prior to the Revolving Credit Termination Date; provided that the Specified Letter of Credit may have an expiry date not later than June 29, 2022.

(c)

If the Company so requests in the applicable L/C Application, the Issuing Lender may agree to issue a Letter of Credit with a one-year tenor that has automatic extension or renewal provisions (each, an “Auto-Extension Letter of Credit”); provided that (x) any such Auto-Extension Letter of Credit must permit the Issuing Lender to prevent any such extension or renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a certain number of days prior to each anniversary of such Letter of Credit’s date of issuance (the “Non-Extension Notice Date”), such number of days to be agreed upon by the Company and the Issuing Lender at the time such Letter of Credit is issued and (y) such prior notice shall be deemed to have been given by the Issuing Lender on the effective date of its resignation as Issuing Lender in accordance with Section 11.9. Unless otherwise directed by the Issuing Lender, the Company shall not be required to make a specific request to the Issuing Lender for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders shall be deemed to have authorized (but may not require) the Issuing Lender to permit the extension of such Letter of Credit at any time to an expiry date not later than five (5) Business Days prior to the Revolving Credit Termination Date; provided, however, that the Issuing Lender shall not permit any such extension if (A) the Issuing Lender has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 2.1(a), Section 2.5 or otherwise), or (B) it has received written notice on or before the day that is thirty (30) days before the Non-Extension Notice Date (1) from the Administrative Agent that the Majority Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Revolving Credit Lender or the Company that one or more of the applicable conditions specified in Section 7.2 is not then satisfied, and in each such case directing the Issuing Lender not to permit such extension.

(d)

Notwithstanding anything herein to the contrary, the Issuing Lender shall have no obligation hereunder to issue, and shall not issue, any Letter of Credit (i) the proceeds of which would be made available to any Person (A) to fund any activity or business of or with any Sanctioned Person, or in any country or territory that, at the time of such funding, is the subject of any Sanctions or (B) in any manner that would result in a violation of any Sanctions by any party to this Agreement, (ii) if any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing such Letter of Credit, or any Requirement of Law relating to the Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Lender with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Issuing Lender in good xxxxx xxxxx material to it, or (iii) if the issuance of such Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally.

2.4

Participating Interests

Effective in the case of each Letter of Credit opened by the Issuing Lender as of the date of the opening thereof and without any further action on the part of the applicable Issuing Lender or the Revolving Credit Lenders, the Issuing Lender hereby grants to itself and each other Revolving Credit Lender, and each Revolving Credit Lender severally and irrevocably agrees to take and does take in such Letter of Credit and the related L/C Application, an L/C Participating Interest in a percentage equal to such Revolving Credit Xxxxxx’s Revolving Credit Commitment Percentage. In consideration and in furtherance of the foregoing, each such Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent in Dollars, for the account of the applicable Issuing Lender, such Revolving Credit Lender’s Revolving Credit Commitment Percentage of each L/C Disbursement made by such Issuing Lender, in each case to the extent not reimbursed by the Company on the date due as provided in Section 2.6, or of any reimbursement payment required to be refunded to the Company for any reason.

Each Revolving Credit Lender’s obligation to purchase participating interests pursuant to this Section 2.4 is absolute and unconditional as set forth in Section 5.16.

2.5

Procedure for Opening Letters of Credit

Upon receipt of any L/C Application from the Company in respect of a Letter of Credit, the Issuing Lender will promptly notify the Administrative Agent thereof and the Administrative Agent will notify each Revolving Credit Lender. The Issuing Lender will process such L/C Application, and the other certificates, documents and other papers delivered to the Issuing Lender in connection therewith, upon receipt thereof in accordance with its customary procedures and, subject to the terms and conditions hereof, shall promptly open such Letter of Credit by issuing the original of such Letter of Credit to the beneficiary thereof and by furnishing a copy thereof to the Company; provided that no such Letter of Credit shall be issued (i) if the amount of such requested Letter of Credit, together with the sum of (A) the aggregate unpaid amount of Revolving L/C Obligations outstanding at the time of such request and (B) the maximum aggregate amount available to be drawn under all Letters of Credit outstanding at such time, would exceed $200,000,000, (ii) if the amount of such requested Letter of Credit, together with the sum of (A) the aggregate unpaid amount of Revolving L/C Obligations outstanding at the time of such request with respect to Letters of Credit issued by such Issuing Lender and (B) the maximum aggregate amount available to be drawn under all Letters of Credit outstanding at such time issued by such Issuing Lender, would exceed such Issuing Xxxxxx’s Issuing Lender Sublimit or (iii) if Section 2.1 would be violated thereby.

2.6

Payments in Respect of Letters of Credit

(a)

If the Issuing Lender shall make any L/C Disbursement in respect of a Letter of Credit, the Company shall reimburse such L/C Disbursement by paying to the Administrative Agent an amount equal to such L/C Disbursement in Dollars, (i) not later than 1:00 P.M., New York City time, on the same Business Day if the Company receives notice of such L/C Disbursement at or before 11:00 A.M. New York City time on such Business Day, or (ii) if the Company receives a notice of disbursement after 11:00 A.M. New York City time not later than 1:00 P.M. New York City time, on the Business Day immediately following the date that the Company receives such notice; provided that the Company may, subject to the conditions to borrowing set forth herein, request in accordance with Section 5.1 that such payment be financed with an ABR Loan or a Swingline Loan, which is a Revolving Credit Loan in an equivalent amount and, to the extent so financed, the Company’s obligation to make such payment shall be discharged and replaced by the resulting ABR Loan or Swingline Loan which is a Revolving Credit Loan.

(b)

If an Issuing Lender shall make any L/C Disbursement, then, unless the Company shall reimburse such L/C Disbursement in full on the date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such L/C Disbursement is made to but excluding the date that the Company reimburses such L/C Disbursement, at the rate per annum then applicable to ABR Loans; provided that, if the Company fails to reimburse such L/C Disbursement when due pursuant to clause (b) of this Section, then, Section 5.7(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Lender, except that interest accrued on and after the date of payment by any Revolving Credit Lender pursuant to clause (a) of this Section to reimburse such Issuing Lender shall be for the account of such Revolving Credit Lender to the extent of such payment. If the Company fails to make such payment when due, then the Administrative Agent shall notify the applicable Issuing Lender and each other applicable Revolving Credit Lender of the applicable L/C Disbursement, the payment then due from the Company in respect thereof and such Revolving Credit Lender’s Revolving Credit Commitment Percentage thereof. Promptly following receipt of such notice, each applicable Revolving Credit Lender shall pay to the Administrative Agent in Dollars its Revolving Credit Commitment Percentage of the payment then due from the Company (and Section 5.18(b) shall apply, mutatis mutandis, to the payment obligations of the Revolving Credit Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Lender in Dollars the amounts so received by it from such Revolving Credit Lender. Promptly following receipt by the Administrative Agent of any payment from the Company pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Lender or, to the extent that Revolving Credit Lenders have made payments pursuant to this paragraph to reimburse such Issuing Lender, then to such Revolving Credit Lenders and the applicable Issuing Lender as their interests may appear. Any payment made by a Revolving Credit Lender pursuant to this paragraph to reimburse any Issuing Lender for any L/C Disbursement (other than the funding of ABR Loans or Swingline Loans as contemplated above) shall not constitute a Loan and shall not relieve the Company of its obligation to reimburse such L/C Disbursement.

(c)

Whenever, at any time after the Issuing Lender has made a payment under any Letter of Credit and has received from any other Revolving Credit Lender such other Revolving Credit Lender’s pro-rata share of the Revolving L/C Obligation arising therefrom, the Issuing Xxxxxx receives any reimbursement on account of such Revolving L/C Obligation or any payment of interest on account thereof, the Issuing Lender will distribute to such other Revolving Credit Lender, through the Administrative Agent, its pro-rata share thereof in like funds as received (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Credit Lender’s participating interest was outstanding and funded); provided that, in the event that the receipt by the Issuing Lender of such reimbursement or such payment of interest (as the case may be) is required to be returned, such other Revolving Credit Lender will promptly return to the Issuing Lender, through the Administrative Agent, any portion thereof previously distributed by the Issuing Lender to it in like funds as such reimbursement or payment is required to be returned by the Issuing Lender.

(d)

The Company shall pay to each Issuing Lender, each of the fees set forth in Section 5.11.

2.7

Eligible Cash Account

Notwithstanding anything to the contrary contained herein, so long as no Default or Event of Default has occurred and is continuing, the Company may request that all or a portion of Eligible Cash Collateral be transferred to another Controlled Account of the Credit Parties that is not fully-blocked, it being understood that upon such transfer, Eligible Cash Collateral shall be reduced by the amount of such transferred cash. Upon such request, the Administrative Agent may, at its Permitted Discretion, promptly transfer such cash as directed by the Company so long as such transfer would not cause the Aggregate Revolving Credit Extensions of Credit to exceed the Line Cap.

2.8

Protective Advances

(a)

Subject to the limitations set forth below, the Administrative Agent, in its sole discretion exercised in good faith, may make Revolving Credit Loans to the Company on behalf of the Lenders, if the Administrative Agent, in its Permitted Discretion, deems that such Revolving Credit Loans are necessary or desirable (i) to protect all or any portion of the Collateral, (ii) to enhance the likelihood or maximize the amount of repayment of the Loans and the other Obligations or (iii) to pay any other amount chargeable to the Company pursuant to this Agreement (such Revolving Credit Loans, “Protective Advances”); provided that (A) the aggregate amount of Protective Advances outstanding at any time shall not at any time exceed 10% of the Line Cap, (B) in no event shall the sum of the Aggregate Revolving Credit Extensions of Credit exceed the aggregate Revolving Credit Commitments and (C) the Majority Lenders may at any time revoke the Administrative Agent’s authorization to make future Protective Advances (provided that existing Protective Advances shall not be subject to such revocation and any such revocation must be in writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof). At any time that the conditions for making a Revolving Credit Loan are satisfied, the Administrative Agent may request the Lenders to make a Revolving Credit Loan to repay a Protective Advance. At any other time the Administrative Agent may require the Lenders to fund their risk participation described in Section 2.8(b).

(b)

Upon the making of a Protective Advance, each Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Administrative Agent (regardless of the existence of any Event of Default or other condition), without recourse or warranty, an undivided interest and participation in such Protective Advance based upon their Revolving Credit Commitment Percentages. From and after the date, if any, on which any Lender is required to fund its participation in any Protective Advance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Xxxxxx’s Revolving Credit Commitment Percentages of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Protective Advance.

(c)

All Protective Advances shall be secured by the Collateral and shall bear interest as provided in this Agreement for ABR Loans.

2.9

Swingline Loans

(a)

The Administrative Agent, the Swingline Lender and the Lenders agree that in order to facilitate the administration of this Agreement and the other Credit Documents, promptly after the Company requests a borrowing of ABR Loans in accordance with the requirements of Article 5, the Swingline Lender may elect to have the terms of this Section 2.09(a) apply to such request by advancing, on behalf of the Lenders and in the amount requested, same day funds to the Company on the date of the applicable borrowing to the account of the Company designated by the Company (each such Loan made solely by the Swingline Lender pursuant to this Section 2.09(a) is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.09(c). Each Swingline Loan shall be subject to all the terms and conditions applicable to other ABR Loans funded by the Lenders, except that all payments thereon shall be payable to the Swingline Lender solely for its own account. The aggregate amount of Swingline Loans that may be outstanding hereunder shall not exceed $25,000,000 unless the Swingline Lender agrees in its sole discretion; provided that the aggregate amount of Swingline Loans that may be outstanding hereunder shall not exceed $50,000,000.

(b)

Upon the making of a Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Swingline Loan), each Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Swingline Lender, without recourse or warranty, an undivided interest and participation in such Swingline Loan in proportion to its Revolving Credit Commitment Percentage of the Revolving Credit Commitment. The Swingline Lender may, at any time, require the Lenders to fund their participations. From and after the date, if any, on which any Lender is required to fund its participation in any Swingline Loan purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Xxxxxx’s Revolving Credit Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Swingline Loan.

(c)

The Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a “Settlement”) with the Lenders on at least a weekly basis or on any date that the Administrative Agent elects, by notifying the Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 1:00 P.M. New York time on the date of such requested Settlement (the “Settlement Date”). Each Lender (other than the Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Xxxxxx’s Revolving Credit Commitment Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may designate, not later than 3:00 P.M., New York time, on such Settlement Date. Settlements may occur during the existence of a Default and whether or not the applicable conditions precedent set forth in Section 7.02 have then been satisfied. Such amounts transferred to the Administrative Agent shall be applied against the amounts of the Swingline Lender’s Swingline Loans and, together with Swingline Lender’s Revolving Credit Commitment Percentage of such Swingline Loan, shall constitute Revolving Loans of such Revolving Lenders, respectively. If any such amount is not transferred to the Administrative Agent by any Revolving Lender on such Settlement Date, the Swingline Lender shall be entitled to recover from such Lender on demand such amount, together with interest thereon, as specified in Section 2.09.

Amount and Terms of Incremental Loans

3.1

Requests for Incremental Loans

Upon notice to the Administrative Agent (which shall promptly notify the Lenders) at any time after the Closing Date but prior to the Revolving Credit Termination Date, the Company may request additional revolving loan commitments or increases in the aggregate amount of Revolving Credit Commitments (each such additional commitment or increase, a “Revolving Credit Commitment Increase” and all of them, collectively, the “Revolving Credit Commitments Increases”); provided that after giving effect to any Revolving Credit Commitment Increase, the aggregate amount of Revolving Credit Commitments Increases that have been added pursuant to this Section 3.1 shall not exceed $200,000,000 after the Fifth Amendment Effective Date. Any loans made in respect of any such Revolving Credit Commitment Increase (the “Incremental Revolving Credit Loans”) shall be made by increasing the aggregate Revolving Credit Commitments with terms identical to those of the existing Revolving Credit Loans. Notwithstanding the foregoing, (i) each Revolving Credit Commitment Increase effected pursuant to this Article 3 shall be in a minimum amount of at least $10,000,000 and (ii) no more than three Revolving Credit Commitment Increases may be selected by the Company after the Third Amendment Effective Date.

3.2

Ranking and Other Provisions

The Incremental Revolving Credit Loans (i) shall have the same guarantees as, and rank pari passu in right of payment and in respect of lien priority as to the Collateral with the Obligations in respect of, the Revolving Credit Commitments and (ii) shall be on terms and pursuant to documentation identical as, and treated substantially the same as, the Revolving Credit Loans.

3.3

Notices; Xxxxxx Elections

The notice from the Company to the Administrative Agent delivered pursuant to Section 3.1 shall set forth the requested amount and proposed terms of the Revolving Credit Commitments Increases, which proposed terms shall not be inconsistent with the requirements of Section 3.2. At the time of the sending of such notice, the Company (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten (10) days from the date of delivery of such notice to the Lenders). Incremental Revolving Credit Loans (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Incremental Lender”), in each case on terms permitted in this Article 3 and otherwise on terms reasonably acceptable to the Administrative Agent, provided that the Administrative Agent and the Issuing Lender (in the case of the Issuing Lender, solely in the event the Incremental Lender is not an existing Lender) shall have consented (which consent shall not be unreasonably withheld, conditioned or delayed) to such Lender’s or Incremental Lender’s, as the case may be, making such Incremental Revolving Credit Loans if such consent would be required under Section 12.6 for an assignment of Loans to such Lender or Incremental Lender, as the case may be. No Lender shall be obligated to provide any Revolving Credit Commitment Increase, unless it so agrees. Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide a Revolving Credit Commitment Increase and, if so, whether by an amount equal to, greater than, or less than its Commitment Percentage of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Loans held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide a Revolving Credit Commitment Increase. The Administrative Agent shall notify the Company and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, the Company may also invite additional Eligible Assignees to become Incremental Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.

3.4

Incremental Facility Amendment

Revolving Credit Commitments Increases shall become Commitments (or in the case of any Revolving Credit Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Revolving Credit Lender’s Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Company, each Lender agreeing to provide such Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Article 3.

3.5

Effective Date and Allocations

If any Revolving Credit Commitments Increases are added in accordance with this Article 3, the Administrative Agent and the Company shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocation of such Revolving Credit Commitments Increases. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such Revolving Credit Commitments Increases and the Incremental Commitments Effective Date.

3.6

Conditions to Effectiveness of Increase

The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent, each Lender party thereto, if any, and the Incremental Lenders, if any, be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:

(a)

the Administrative Agent shall have received on or prior to the Incremental Facility Closing Date each of the following, each dated the Incremental Facility Closing Date unless otherwise indicated or agreed to by the Administrative Agent and each in form and substance reasonably satisfactory to the Administrative Agent: (i) the applicable Incremental Facility Amendment; (ii) certified copies of resolutions of the board of directors of each Credit Party approving the execution, delivery and performance of the Incremental Facility Amendment; and (iii) a favorable opinion of counsel for the Credit Parties dated the Incremental Facility Closing Date, to the extent reasonably requested by the Administrative Agent, addressed to the Administrative Agent and the Lenders and in form and substance and from counsel reasonably satisfactory to the Administrative Agent;

(b)

(i) the conditions precedent set forth in Section 7.2 shall have been satisfied both before and after giving effect to such Incremental Facility Amendment and the additional Extensions of Credit provided thereby (it being understood that all references to “the obligation of any Lender to make a Loan on the occasion of any Borrowing” shall be deemed to refer to the effectiveness of the Incremental Facility Amendment on the Incremental Facility Closing Date) and (ii) all Incremental Revolving Credit Loans provided by the applicable Incremental Facility Amendment shall be made on the terms and conditions provided for above; and

(c)

there shall have been paid to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including any Person becoming a Lender as part of such Incremental Facility Amendment on the related Incremental Facility Closing Date), as applicable, all fees and expenses (including reasonable and documented out-of-pocket fees, charges and disbursements of one outside counsel and, if necessary, one local counsel in each applicable jurisdiction) invoiced with reasonable supporting documentation that are due and payable on or before the Incremental Facility Closing Date.

3.7

Effect of Incremental Facility Amendment

On the Incremental Commitments Effective Date, each Lender or Eligible Assignee which is providing a Revolving Credit Commitment Increase (i) shall become a “Lender” for all purposes of this Agreement and the other Credit Documents and (ii) shall have a Revolving Credit Commitment Increase which shall become a “Commitment” hereunder.

3.8

Revolving Credit Commitment Increases

Upon each Revolving Credit Commitment Increase pursuant to this Article 3, (i) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each existing Lender, if any, and each Incremental Lender, if any, in each case providing a portion of such Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”), and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Xxxxxx’s participation interests hereunder in outstanding Letters of Credit such that, after giving effect to such Revolving Credit Commitment Increase and each such deemed assignment and assumption of participation interests, the percentage of the aggregate outstanding participation interests hereunder in Letters of Credit held by each Revolving Credit Lender (including such Revolving Credit Commitment Increase Lender) will equal such Revolving Credit Lender’s Revolving Credit Commitment Percentage and (ii) if, on the date of such Revolving Credit Commitment Increase, there are any Revolving Credit Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion and in consultation with the Company, necessary and appropriate to result in each Revolving Credit Lender (including each Revolving Credit Commitment Increase Lender) having a pro-rata share of the outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s Revolving Credit Commitment Percentage immediately after giving effect to such Revolving Credit Commitment Increase, provided that any prepayment made in connection with the taking of any such steps shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 5.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.

3.9

Conflicting Provisions

The provisions of this Article 3 shall supersede any provision of Section 5.18 or 12.1 to the contrary.

[RESERVED]

General Provisions Applicable to Loans and Letters of Credit

5.1

Procedure for Borrowing by the Company

(a)

The Company may borrow under the Commitments on the Closing Date and on any Business Day thereafter. The Company shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to (i) 1:00 P.M., New York City time, three (3) Business Days prior to the requested Borrowing Date in the case of a proposed borrowing of Term Benchmark Loans and (ii) 2:00 P.M., New York City time, on the requested Borrowing Date if the borrowing is to be solely of ABR Loans; provided that any such notice of a borrowing of ABR Loans to finance the reimbursement of an L/C Disbursement as contemplated by Section 2.6(a) may be given not later than 1:00 P.M., New York City time, on the date of the proposed borrowing) signed by a Responsible Officer of the Company specifying (A) the amount of the borrowing, (B) whether such Loans are initially to be Term Benchmark Loans or ABR Loans, or a combination thereof, (C) if the borrowing is to be entirely or partly Term Benchmark Loans, the length of the Interest Period for such Term Benchmark Loans and (D) the amount of such borrowing to be constituted by Revolving Credit Loans and/or Incremental Revolving Credit Loans. Upon receipt of such notice the Administrative Agent shall promptly notify each Lender, which notice shall in any event be delivered to each Lender by 2:00 P.M., New York City time, on such date. Not later than 3:00 P.M., New York City time, on the Borrowing Date specified in such notice, each Lender shall make available to the Administrative Agent at the office of the Administrative Agent specified in Section 12.2 (or at such other location as the Administrative Agent may direct) in Dollars an amount in Same Day Funds equal to the amount of the Loan to be made by such Lender. Loan proceeds received by the Administrative Agent hereunder shall promptly be made available to the Company by the Administrative Agent’s crediting the account of the Company designated by the Company, with the aggregate amount actually received by the Administrative Agent from the Lenders and in like funds as received by the Administrative Agent; provided that Revolving Credit Loans made to finance the reimbursement of an L/C Disbursement as provided in Section 2.6 shall be remitted by the Administrative Agent to the applicable Issuing Lender.

(b)

Any borrowing of Term Benchmark Loans by the Company hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, (i) except as provided in Section 2.1(b), the aggregate principal amount of all Term Benchmark Loans having the same Interest Period shall not be less than $1,000,000 or a whole multiple of $1,000,000 in excess thereof, and (ii) no more than ten Interest Periods shall be in effect at any one time with respect to Term Benchmark Loans. Each Swingline Loan shall be an ABR Loan.

5.2

Repayment of Loans; Evidence of Debt

(a)

The Company hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Credit Loan of such Lender on the Revolving Credit Termination Date (or such earlier date on which the Revolving Credit Loans become due and payable pursuant to Article 10). The Company hereby further agrees to pay interest on the unpaid principal amount of the Loans from time to time outstanding from the date hereof until payment in full thereof at the rates per annum, and on the dates, set forth in Section 5.7.

(b)

At all times during a period when a Cash Dominion Event has occurred and is continuing, (i) on each Business Day, the Administrative Agent shall apply all funds credited to the Collection Account as of 10:00 A.M., New York City time, on such Business Day (whether or not immediately available), first, to prepay any Protective Advances, second, to prepay the Revolving Credit Loans, third, to the payment of any Revolving L/C Obligations then outstanding, and fourth, to Cash Collateralize outstanding Letters of Credit, without a corresponding reduction in the Revolving Credit Commitments and (ii) on each Business Day following the last day of the Asset Sale Reserve Period, the Administrative Agent shall apply all funds credited to the Asset Sale Reserve Account as of 10:00 A.M., New York City time, on such Business Day (whether or not immediately available), first, to prepay any Protective Advances, second, to prepay the Revolving Credit Loans, third, to the payment of any Revolving L/C Obligations then outstanding, and fourth, to Cash Collateralize outstanding Letters of Credit, without a corresponding reduction in the Revolving Credit Commitments; provided that if the Asset Sale Reserve Period ends as a result of the Cash Dominion Event that commenced such Asset Sale Reserve Period no longer being continuing, the Administrative Agent shall promptly apply funds credited to the Asset Sale Reserve Account at the Company’s direction for any purpose not prohibited hereunder. Notwithstanding the foregoing, to the extent any funds credited to the Asset Sale Reserve Account constitute Net Proceeds of a Fixed Debt Priority Collateral Prepayment Event, the application of such proceeds shall be subject to Section 5.6(c).

(c)

Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Company to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

(d)

The Administrative Agent shall maintain the Register pursuant to Section 12.6(d) and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder, the Type thereof and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Company to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent hereunder from the Company and each Lender’s share thereof.

(e)

The entries made in the Register and the accounts of each Lender maintained pursuant to Section 5.2(c) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Company therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Company to repay (with applicable interest) the Loans made to such Company by such Lender in accordance with the terms of this Agreement.

5.3

Conversion and Continuation Options

(a)

The Company may elect from time to time to convert Term Benchmark Loans into ABR Loans by giving the Administrative Agent irrevocable notice of such election, to be received by the Administrative Agent prior to 1:00 pm, New York City time, at least three (3) Business Days prior to the proposed conversion date, provided that any such conversion of Term Benchmark Loans shall only be made on the last day of an Interest Period with respect thereto. The Company may elect from time to time to convert all or a portion of the ABR Loans then outstanding to Term Benchmark Loans by giving the Administrative Agent irrevocable notice of such election, to be received by the Administrative Agent prior to 1:00 P.M., New York City time, at least three (3) Business Days prior to the proposed conversion date, specifying the Interest Period selected therefor, and, if no Default or Event of Default has occurred and is continuing, such conversion shall be made on the requested conversion date or, if such requested conversion date is not a Business Day, on the next succeeding Business Day. Upon receipt of any notice pursuant to this Section 5.3, the Administrative Agent shall promptly, but in any event by 2:00 P.M., New York City time, notify each Lender thereof. All or any part of the outstanding Loans may be converted as provided herein, provided that partial conversions of Loans shall be in the aggregate principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof, and the aggregate principal amount of the resulting Term Benchmark Loans outstanding in respect of any one Interest Period shall be at least $1,000,000 or a whole multiple of $1,000,000 in excess thereof. This Section 5.3 shall not apply to Swingline Loans or Protective Advances, which may not be converted or continued.

(b)

So long as no Default or Event of Default has occurred and is continuing, the Company may elect from time to time to continue Term Benchmark Loans upon the expiry of the then current Interest Period with respect to such Term Benchmark Loans by giving the Administrative Agent irrevocable notice of such election, signed by a Responsible Officer of the Company, to be received by the Administrative Agent prior to 1:00 P.M., New York City time, at least three (3) Business Days prior to the end of such Interest Period, in each case specifying the new Interest Period selected therefor, provided that any such continuation shall only be made on the last day of an Interest Period with respect thereto. So long as no Default or Event of Default has occurred and is continuing, such continuation shall become effective on the last day of such Interest Period. So long as no Default or Event of Default has occurred and is continuing, if the Company fails to timely deliver such notice with respect to a Term Benchmark Loan, such Term Benchmark Loans shall be converted to ABR Loans.

5.4

Changes of Commitment Amounts

(a)

The Company shall have the right, upon not less than three (3) Business Days’ notice to the Administrative Agent, to terminate or, from time to time, reduce the Revolving Credit Commitments subject to the provisions of this Section 5.4. To the extent, if any, that the sum of the Revolving Credit Loans and Revolving L/C Obligations then outstanding and the amounts available to be drawn under outstanding Letters of Credit exceeds the Line Cap (after giving effect to the Revolving Credit Commitments as then reduced), the Company shall be required to make a prepayment equal to such excess amount, the proceeds of which shall be applied first, to prepay any Protective Advances, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Revolving L/C Obligations then outstanding, and fourth, to Cash Collateralize any outstanding Letters of Credit on terms reasonably satisfactory to the Administrative Agent and the applicable Issuing Lender. Each reduction or termination of the Revolving Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Credit Commitments. Any such termination of the Revolving Credit Commitments shall be accompanied by prepayment in full of the Revolving Credit Loans and Revolving L/C Obligations then outstanding and by Cash Collateralization of any outstanding Letter of Credit on terms reasonably satisfactory to the Administrative Agent and the applicable Issuing Lender by way of a deposit with the Administrative Agent into the Cash Collateral Account an amount of cash collateral equal to 105% of the aggregate undrawn stated amount of all outstanding Letters of Credit as security for the Finance Obligations to the extent that such Letters of Credit are not otherwise paid or cash collateralized at such time. Upon termination of the Revolving Credit Commitments, any Letter of Credit then outstanding which has been so Cash Collateralized shall no longer be considered a “Letter of Credit”, as defined in Section 1.1 and any L/C Participating Interests heretofore granted by the Issuing Lender to the Lenders in such Letter of Credit shall be deemed terminated (subject to automatic reinstatement in the event that such cash collateral is returned and the Issuing Lender is not fully reimbursed for any such Revolving L/C Obligations), but the Letter of Credit fees payable under Section 5.11 shall continue to accrue to the Issuing Lender (or, in the event of any such automatic reinstatement, as provided in Section 5.11) with respect to such Letter of Credit until the expiry thereof.

(b)

Interest accrued on the amount of any partial prepayment pursuant to this Section 5.4 to the date of such partial prepayment shall be paid on the Interest Payment Date next succeeding the date of such partial prepayment. In the case of the termination of the Revolving Credit Commitments, interest accrued on the amount of any prepayment relating thereto and any unpaid Commitment Fee accrued hereunder shall be paid on the date of such termination. Any such partial reduction of the Revolving Credit Commitments shall be in an amount of $1,000,000 or a whole multiple of $500,000 in excess thereof, and shall reduce permanently the Revolving Credit Commitments then in effect.

5.5

Optional Prepayments

The Company may at any time and from time to time prepay Loans, in whole or in part, upon irrevocable notice to the Administrative Agent (i) on any Business Day (to be received no later than 12:00 P.M., New York City time, on such Business Day) in the case of ABR Loans or Swingline Loans, (ii) one (1) Business Days’ irrevocable notice to the Administrative Agent (to be received no later than 11:00 A.M., New York City time, on such Business Day) in the case of Term Benchmark Loans or (iii) five (5) U.S. Government Securities Business Days’ irrevocable notice to the Administrative Agent (to be received no later than 11:00 A.M., New York City time, on such Business Day) in the case of RFR Loans and specifying the date and amount of prepayment; provided that RFR Loans and Term Benchmark Loans prepaid on any date other than the last day of any Interest Period with respect thereto shall be prepaid subject to the provisions of Section 5.21. Upon receipt of such notice the Administrative Agent shall promptly notify each Lender thereof. If such notice is given, the Company shall make such prepayment, and the payment amount specified in such notice shall be due and payable, on the date specified therein. Accrued interest on the amount of any Loans paid in full pursuant to this Section 5.5 shall be paid on the date of such prepayment. Accrued interest on the amount of any partial prepayment shall be paid on the Interest Payment Date next succeeding the date of such partial prepayment. Partial prepayments shall be in an aggregate principal amount equal to the lesser of (A) $1,000,000 or a whole multiple of $500,000 in excess thereof and (B) the aggregate unpaid principal amount of the applicable Loans, as the case may be.

5.6

Mandatory Prepayments

(a)

In the event the Aggregate Revolving Credit Extensions of Credit exceeds the Line Cap (including after giving effect to any reductions in the Revolving Credit Commitments pursuant to Section 5.4(a)), the Company shall within one (1) Business Day of notice thereof from the Administrative Agent prepay Revolving Credit Loans (including the Swingline Loans) and Cash Collateralize the Revolving L/C Obligations in an aggregate amount equal to such excess.

(b)

Upon the Revolving Credit Termination Date, the Company shall, with respect to each then outstanding Letter of Credit, if any, either (i) cause such Letter of Credit to be cancelled without such Letter of Credit being drawn upon or (ii) Cash Collateralize the Revolving L/C Obligations with respect to such Letter of Credit with a letter of credit issued by banks or a bank satisfactory to the Administrative Agent and each applicable Issuing Lender on terms satisfactory to the Administrative Agent and each applicable Issuing Lender.

(c)

If any Credit Party receives any Net Proceeds in respect of any Fixed Debt Priority Collateral Prepayment Event, then (i) so long as no Cash Dominion Event has occurred or is in effect, the Company shall, on the next Business Day after such Net Proceeds are utilized for any required repayments of the Fixed Debt (or, if the Payment Conditions are then satisfied, any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien) or reinvested in (x) Additional Assets or (y) Capital Expenditures and other Investments used or useful in a Permitted Business (which shall include any Investment permitted by the Term Loan Agreement and this Agreement), in each case, in accordance with the terms of the Fixed Debt Documents (or the indenture or documents governing any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien), prepay the Obligations in an aggregate amount equal to the lesser of (A) 100% of such Net Proceeds minus amounts so utilized for repayments of the Fixed Debt (or, if the Payment Conditions are then satisfied, any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien) or reinvested in Collateral, in each case, in accordance with the terms of the Fixed Debt Documents (or the indenture or documents governing any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien) and (B) the aggregate outstanding principal amount of the Loans or (ii) if a Cash Dominion Event has occurred and is continuing, the Company shall, within one (1) Business Day following such Fixed Debt Priority Collateral Prepayment Event, utilize such Net Proceeds to repay all or any portion of the Loans or deposit any remaining Net Proceeds (after giving effect to any repayment of the Loans) into the Asset Sale Reserve Account.

(d)

Within five (5) Business Days of the date of incurrence by any Credit Party or any Restricted Subsidiary of any Indebtedness (other than Indebtedness permitted by Section 9.2), the Company shall prepay Revolving Credit Loans and Cash Collateralize the Revolving L/C Obligations in an aggregate amount equal to 100% of the net proceeds received by such Person in connection with such incurrence. The provisions of this Section 5.6(d) shall not be deemed to be implied consent to any such incurrence otherwise prohibited by the terms and conditions of this Agreement.

(e)

If, at the end of any Excess Cash Test Date there are Revolving Credit Loans and/or Revolving L/C Obligations outstanding and the Credit Parties and their Restricted Subsidiaries have Excess Cash exceeding $50,000,000, the Company shall prepay Revolving Credit Loans and Cash Collateralize the Revolving L/C Obligations in an aggregate amount equal to the lesser of (i) the amount of such Excess Cash minus $50,000,000 minus the amount of any wires initiated or ACH transfers issued by any Credit Party in the ordinary course of business after the end of such Excess Cash Test Date and prior to 12:00 P.M., New York City time, on the date that such prepayment is required to be made and (ii) the aggregate principal amount of Revolving Credit Loans and Revolving L/C Obligations then outstanding by 12:00 P.M., New York City time on the next Business Day; provided that prepayments under this Section 5.6(e) shall not require the Company to pay any breakage under Section 5.21.

All prepayments made under this Section 5.6 shall be made first, to prepay any Protective Advances, second, to prepay the Revolving Credit Loans (including the Swingline Loans), third, to the payment of any Revolving L/C Obligations then outstanding, and fourth, to Cash Collateralize outstanding Letters of Credit, without a corresponding permanent reduction in the Revolving Credit Commitments.

5.7

Interest Rates and Payment Dates

(a)

Each Protective Advance shall bear interest for the period from and including the date thereof until repayment thereof on the unpaid principal amount thereof at a rate per annum equal to the ABR plus the Applicable Margin.

(b)

Each (i) Term Benchmark Loan shall bear interest for each day during each Interest Period with respect thereto on the unpaid principal amount thereof at a rate per annum equal to the Adjusted Term SOFR Rate determined for such Interest Period plus the Applicable Margin and (ii) RFR Loan shall bear interest for the period from and including the date thereof until maturity thereof on the unpaid principal amount thereof at a rate per annum equal to Adjusted Daily Simple SOFR plus the Applicable Margin.

(c)

Each ABR Loan (including Swingline Loans) shall bear interest for the period from and including the date thereof until maturity thereof on the unpaid principal amount thereof at a rate per annum equal to the ABR plus the Applicable Margin.

(d)

While (i) an Event of Default under Sections 10.1(a), (c)(ii) or (f) exists, automatically and (ii) any other Event of Default exists and the Majority Lenders (or the Administrative Agent at the direction of the Majority Lenders) shall have so elected (and in either case without limiting the rights of the Lenders or the Administrative Agent under Article 10), the Company shall pay interest on the principal amount of all outstanding Obligations at a fluctuating interest rate per annum equal to (A) in the case of principal, 2.00% above the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section or (B) in the case of overdue interest and fees, 2.00% above the rate described in clause (c) of this Section for Revolving Credit Loans which are ABR Loans, in each case from the date of such nonpayment or Event of Default, as applicable, until such amount is paid in full (as well after as before judgment).

(e)

Interest shall be payable in arrears on each Interest Payment Date; provided that interest accruing pursuant to clause (d) of this Section shall be payable on demand by the Administrative Agent made at the request of the Majority Lenders.

5.8

Computation of Interest and Fees

(a)

Interest in respect of ABR Loans at any time the ABR is calculated based on the Prime Rate shall be calculated on the basis of a 365 or 366, as the case may be, day year for the actual days elapsed. Interest in respect of Term Benchmark Loans, RFR Loans and ABR Loans at any time the ABR is not calculated based on the Prime Rate and all fees hereunder shall be calculated on the basis of a three hundred and sixty (360) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Company and the Lenders of each determination of the Relevant Rate. Any change in the interest rate on a Loan resulting from a change in the ABR shall become effective as of the opening of business on the day on which such change in the ABR becomes effective. The Administrative Agent shall as soon as practicable notify the Company and the Lenders of the effective date and the amount of each such change.

(b)

Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Company and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Company, deliver to the Company a statement showing the quotations used by the Administrative Agent in determining the Relevant Rate.

5.9

Commitment Fees

(a)

The Company agrees to pay to the Administrative Agent, for the account of each Lender, a commitment fee (a “Commitment Fee”), in Dollars, on the average daily amount of such Lender’s Available Revolving Credit Commitment outstanding from time to time from the Closing Date to but excluding the Revolving Credit Termination Date, at a rate per annum equal to (i) 0.50% per annum, if the Applicable Level is Applicable Level III, Applicable Level IV, Applicable Level V or Applicable Level VI and (ii) 0.375% per annum, if the Applicable Level is Applicable Level I or Applicable Level II.

(b)

The Commitment Fee provided for in this Section 5.9 shall (i) accrue from the Closing Date and (ii) be payable quarterly in arrears on the first Business Day after the last day of each fiscal quarter of the Company commencing with the first such day to occur after the Closing Date and on the Revolving Credit Termination Date.

5.10

Certain Fees

The Company agrees to pay to the Administrative Agent for its own account a non-refundable agent’s fee, and to JPMCB all other fees, in each case, in the amount and payable on such dates as provided in the Fee Letter (as the same may be amended, supplemented, and restated or otherwise modified from time to time).

5.11

Letter of Credit Fees

(a)

The Company agrees to pay the Administrative Agent a Letter of Credit fee in Dollars, for the account of the Issuing Lender and the Participating Lenders, on the daily outstanding amount available to be drawn under each Letter of Credit at a rate per annum equal to the Applicable Margin for Term Benchmark Loans in effect on such day, whether or not there are any such Term Benchmark Loans outstanding at such time, payable in arrears, on the first Business Day after the last day of each fiscal quarter of the Company and on the Revolving Credit Termination Date.

(b)

In addition, notwithstanding the specification of any inconsistent fronting or other similar fee contained in any L/C Application, the Company shall pay to the Issuing Lender (solely for its own account as Issuing Lender of such Letter of Credit and not on account of its L/C Participating Interest therein) with respect to each Letter of Credit, during the period from and including the Closing Date to the Revolving Credit Termination Date and on the Revolving Credit Termination Date, (i) a fronting fee equal to 0.125% per annum times the daily maximum amount available to be drawn under such Letter of Credit; and (ii) the Issuing Lender’s standard documentary, processing, administrative, issuance, amendment and negotiation fees and out of pocket expenses only, in connection with Letters of Credit. Any such fees shall be payable on the first Business Day after the last day of each fiscal quarter of the Company and on the Revolving Credit Termination Date. Any such fees accruing after the Revolving Credit Termination Date shall be payable on demand. Any other fees, costs and expenses payable to the Issuing Lender pursuant to this paragraph shall be payable within ten (10) days after demand by the Issuing Lender.

5.12

Letter of Credit Reserves

(a)

If any Change in Law after the date of this Agreement shall either (i) impose, modify, deem or make applicable any reserve, special deposit, assessment or similar requirement against letters of credit issued by the Issuing Lender or (ii) impose on the Issuing Lender any other condition regarding this Agreement or any Letter of Credit, and the result of any event referred to in clause (i) or (ii) above shall be to increase the cost to the Issuing Lender of issuing or maintaining any Letter of Credit (which increase in cost shall be the result of the Issuing Lender’s reasonable allocation of the aggregate of such cost increases resulting from such events), then, upon demand by the Issuing Lender, the Company shall immediately pay to the Issuing Lender, from time to time as specified by the Issuing Lender, additional amounts which shall be sufficient to compensate the Issuing Lender for such increased cost, together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the ABR plus the Applicable Margin for ABR Loans. A certificate submitted by the Issuing Lender to the Company concurrently with any such demand by the Issuing Lender, shall be conclusive, absent manifest error, as to the amount thereof.

(b)

In the event that at any time after the date hereof any Change in Law with respect to the Issuing Lender shall, in the opinion of the Issuing Lender, require that any obligation under any Letter of Credit be treated as an asset or otherwise be included for purposes of calculating the appropriate amount of capital or liquidity to be maintained by the Issuing Lender or any corporation controlling the Issuing Lender, and such Change in Law shall have the effect of reducing the rate of return on the Issuing Lender’s or such corporation’s capital, as the case may be, as a consequence of the Issuing Lender’s obligations under such Letter of Credit to a level below that which the Issuing Lender or such corporation, as the case may be, could have achieved but for such Change in Law (taking into account the Issuing Lender’s or such corporation’s policies, as the case may be, with respect to capital adequacy) by an amount deemed by the Issuing Lender to be material, then from time to time following notice by the Issuing Lender to the Company of such Change in Law, within fifteen (15) days after demand by the Issuing Lender, the Company shall pay to the Issuing Lender such additional amount or amounts as will compensate the Issuing Lender or such corporation, as the case may be, for such reduction. If the Issuing Lender becomes entitled to claim any additional amounts pursuant to this Section 5.12(b), it shall promptly notify the Company of the event by reason of which it has become so entitled. A certificate submitted by the Issuing Lender to the Company concurrently with any such demand by the Issuing Lender, shall be conclusive, absent manifest error, as to the amount thereof.

(c)

The Company agrees that the provisions of the foregoing clauses (a) and (b) and the provisions of each L/C Application providing for reimbursement or payment to the Issuing Lender in the event of the imposition or implementation of, or increase in, any reserve, special deposit, capital adequacy or similar requirement in respect of the Letter of Credit relating thereto shall apply equally to each Participating Lender in respect of its L/C Participating Interest in such Letter of Credit, as if the references in such paragraphs and provisions referred to, where applicable, such Participating Lender or any corporation controlling such Participating Lender.

5.13

Further Assurances

The Company hereby agrees, from time to time, to do and perform any and all acts and to execute any and all further instruments reasonably requested by the Issuing Lender to effect more fully the purposes of this Agreement and the issuance of Letters of Credit hereunder. The Company further agrees to execute any and all instruments reasonably requested by the Issuing Lender in connection with the obtaining and/or maintaining of any insurance coverage applicable to any Letters of Credit.

5.14

Obligations Absolute

The payment obligations of the Company under this Agreement with respect to the Letters of Credit shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation, the following circumstances:

(a)

the existence of any claim, set-off, defense or other right which the Company or any of its Subsidiaries may have at any time against any beneficiary, or any transferee, of any Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), the Issuing Lender, any Agent or any Lender, or any other Person, whether in connection with this Agreement, the Related Documents, any Credit Documents, the transactions contemplated herein, or any unrelated transaction;

(b)

any statement or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

(c)

payment by the Issuing Lender under any Letter of Credit against presentation of a draft or certificate which does not comply with the terms of such Letter of Credit, except where such payment constitutes gross negligence or willful misconduct on the part of the Issuing Lender; or

(d)

any other circumstances or happening whatsoever, whether or not similar to any of the foregoing, except for any such circumstances or happening constituting gross negligence or willful misconduct on the part of the Issuing Lender.

5.15

Assignments

No Participating Lender’s participation in any Letter of Credit or any of its rights or duties hereunder shall be subdivided, assigned or transferred (other than in connection with a transfer of part or all of such Participating Lender’s Revolving Credit Commitment in accordance with Section 12.6) without the prior written consent of the Issuing Lender, which consent will not be unreasonably withheld. Such consent may be given or withheld without the consent or agreement of any other Participating Lender. Notwithstanding the foregoing, a Participating Lender may subparticipate its L/C Participating Interest without obtaining the prior written consent of the Issuing Lender.

5.16

Participations

Each Revolving Credit Lender’s obligation to purchase participating interests pursuant to Sections 2.4 and 2.8 shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have against the Issuing Lender, the Company, or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Company; (iv) any breach of this Agreement by the Company or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

5.17

Inability to Determine Interest Rate for Term Benchmark Loans and Alternate Interest Rate

(a)

Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 5.17, if:

(i)

the Administrative Agent determines (which determination shall be conclusive absent manifest error) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis) for such Interest Period or (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or

(ii)

the Administrative Agent is advised by the Majority Lenders that (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such borrowing for such Interest Period or (B) at any time, Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such borrowing;

then the Administrative Agent shall give notice thereof to the Company and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Company and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Company delivers a new election request in accordance with the terms of Section 5.3 or a new request for borrowing in accordance with the terms of Section 5.1, any request by the Company for the conversion of any Revolving Credit Loan to, or continuation of any Revolving Credit Loan as, a Term Benchmark Loan and any request by the Company for a Term Benchmark Borrowing shall instead be deemed to be an election request or a borrowing request, as applicable, for (1) a RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 5.17(a)(i) or (ii) above or (2) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 5.17(a)(i) or (ii) above; provided that if the circumstances giving rise to such notice affect only one Type of Loan, then the other Types of Loan shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Company’s receipt of the notice from the Administrative Agent referred to in this Section 5.17(a) with respect to the Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Company and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Company delivers a new interest election request in accordance with the terms of Section 5.3 or a new request for borrowing in accordance with the terms of Section 5.1, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (1) a RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 5.17(a)(i) or (ii) above or (2) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 5.17(a)(i) or (ii) above on such day.

(b)

Notwithstanding anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Majority Lenders.

(c)

Notwithstanding anything to the contrary herein or in any other Credit Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Credit Document.

(d)

The Administrative Agent will promptly notify the Company and the Lenders of (i) any occurrence of a Benchmark Transition Event, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 5.17, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 5.17.

(e)

Notwithstanding anything to the contrary herein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.

(f)

Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Company may revoke any request for a Term Benchmark Borrowing or RFR Borrowing, or conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Company will be deemed to have converted any request for a Term Benchmark Borrowing into a request for a borrowing of or conversion to (i) a RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (ii) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR.

(g)

Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 5.17, (i) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute (A) a RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (ii) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan.

5.18

Pro Rata Treatment and Payments

(a)

Each borrowing of any Loans by the Company from the Lenders, each payment by the Company on account of any fee hereunder (other than as set forth in Sections 5.10 and 5.11) and any reduction of the Revolving Credit Commitments or Revolving Credit Commitments Increases of the Lenders hereunder shall be made pro-rata according to the Commitment Percentages of the Lenders. Each payment (including each prepayment) by the Company on account of principal of and interest on the Loans (other than payments made directly to the Swingline Lender as expressly provided herein or as set forth in Sections 5.6, 5.19, 5.20 and 5.21) shall be made pro-rata according to the Commitment Percentages of the Lenders. All payments (including prepayments) to be made by the Company on account of principal, interest and fees shall be made without set-off or counterclaim and shall be made to the Administrative Agent, for the account of the Lenders, at the Administrative Agent’s office located at 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx X0, Xxxxxxx, Xxxxxxxx in Same Day Funds. The Administrative Agent shall promptly distribute such payments ratably to each Lender in like funds as received to the extent required by this Agreement. If any payment hereunder (other than payments on Term Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension unless the result of such extension would be to extend such payment into another calendar month in which event such payment shall be made on the immediately preceding Business Day. All payments hereunder shall be made in Dollars.

(b)

Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing Date (or with respect to an ABR Loan, on the Borrowing Date) that such Lender will not make the amount which would constitute its Commitment Percentage of the borrowing on such date available to the Administrative Agent, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Borrowing Date in accordance with Section 5.1, and the Administrative Agent may, in reliance upon such assumption, make available to the Company a corresponding amount. If such amount is made available to the Administrative Agent by such Lender on a date after such Borrowing Date, such Lender shall pay to the Administrative Agent on demand an amount equal to the product of (i) the daily average NYFRB Rate during such period as quoted by the Administrative Agent, times (ii) the amount of such Xxxxxx’s Commitment Percentage of such borrowing, times (iii) a fraction the numerator of which is the number of days that elapse from and including such Borrowing Date to the date on which such Xxxxxx’s Commitment Percentage of such borrowing shall have become immediately available to the Administrative Agent and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this Section 5.18(b) shall be conclusive, absent manifest error. If such Xxxxxx’s Commitment Percentage of such borrowing is not in fact made available to the Administrative Agent by such Lender within three (3) Business Days of such Borrowing Date, the Administrative Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans hereunder on demand, from the Company without prejudice to any rights which the Company or the Administrative Agent may have against such Lender hereunder. Nothing contained in this Section 5.18(b) shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof.

(c)

The failure of any Lender to make the Loan to be made by it on any Borrowing Date shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on such Borrowing Date, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on such Borrowing Date.

(d)

All payments and prepayments (other than mandatory prepayments as set forth in Section 5.6 and other than prepayments as set forth in Section 5.20 with respect to increased costs) of Term Benchmark Loans hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of all Term Benchmark Loans with the same Interest Period shall not be less than $1,000,000 or a whole multiple of $500,000 in excess thereof.

(e)

Any proceeds of Collateral received by any Collateral Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Credit Documents (which shall be applied as specified by the Company), (B) a mandatory prepayment (which shall be applied in accordance with Section 5.6) or (C) amounts to be applied from the Collection Account or the Asset Sale Reserve Account when a Cash Dominion Event has occurred and is continuing (which shall be applied in accordance with Section 5.2(b)) and (ii) after an Event of Default has occurred and is continuing, whenever the Administrative Agent so elects or the Majority Lenders so direct, shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent, the Collateral Agent and the Issuing Lender from the Company (other than in connection with Cash Management Obligations or Swap Obligations), second, to pay any fees, indemnities or expense reimbursements then due to the Lenders from the Company (other than in connection with Cash Management Obligations or Swap Obligations), third, to pay interest due in respect of the Protective Advances, fourth, to pay the principal of the Protective Advances, fifth, to pay interest then due and payable on the Loans (other than Protective Advances) ratably, sixth, to prepay principal on the Loans (other than Protective Advances), unreimbursed L/C Disbursements and, to the extent that Reserves have been established with respect to such amounts, amounts owing with respect to Designated Cash Management Obligations and Designated Swap Obligations, ratably, seventh, to pay an amount to the Administrative Agent equal to one hundred five percent (105%) of the amounts available to be drawn under outstanding Letters of Credit, to be held as cash collateral for Obligations in respect of Letters of Credit, eighth, to payment of any amounts owing with respect to all other Cash Management Obligations or Swap Obligations that constitute Finance Obligations up to and including the amount then due to the relevant parties, and ninth, to the payment of any other Finance Obligation due to the Administrative Agent, the Collateral Agent or any Lender by the Company. Any application of funds pursuant to this Section 5.18 to Revolving Credit Loans shall be applied first, to ABR Loans, second, to RFR Loans and third, to Term Benchmark Loans. Notwithstanding the foregoing, amounts received from any Credit Party shall not be applied to any Excluded Swap Obligation (as such term is defined in the Guaranty) of such Credit Party. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Company, or unless a Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any Term Benchmark Loan, except (a) on the expiry date of the Interest Period applicable thereto or (b) in the event, and only to the extent, that there are no outstanding ABR Loans and, in any such event, the Company shall pay the break funding payment required in accordance with Section 5.21.

(f)

If, except as otherwise expressly provided herein, any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in L/C Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in L/C Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by all such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in L/C Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Company pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in L/C Disbursements or Swingline Loans to any assignee or participant, other than to the Company or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Company consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Company rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Company in the amount of such participation.

5.19

Illegality

Notwithstanding any other provisions herein, if any Requirement of Law or any change therein or in the interpretation or application thereof occurring after the Closing Date shall make it unlawful for such Lender to make or maintain Term Benchmark Loans or RFR Loans as contemplated by this Agreement, the commitment of such Lender hereunder to make Term Benchmark Loans or RFR Loans or to convert all or a portion of ABR Loans into Term Benchmark Loans or RFR Loans shall forthwith be cancelled and such Xxxxxx’s Loans then outstanding as Term Benchmark Loans, if any, shall, if required by law and if such Lender so requests, be converted automatically to ABR Loans on the date specified by such Lender in such request. To the extent that such affected Term Benchmark Loans or RFR Loans are converted into ABR Loans, all payments of principal which would otherwise be applied to such Term Benchmark Loans or RFR Loans shall be applied instead to such Lender’s ABR Loans. The Company hereby agrees promptly to pay any Lender, upon its demand, any additional amounts necessary to compensate such Lender for any costs incurred by such Lender in making any conversion in accordance with this Section 5.19 including, but not limited to, any interest or fees payable by such Lender to lenders of funds obtained by it in order to make or maintain its Term Benchmark Loans or RFR Loans hereunder (such Lender’s notice of such costs, as certified to the Company through the Administrative Agent, to be conclusive absent manifest error).

5.20

Requirements of Law

(a)

In the event that, at any time after the date hereof, any Change in Law or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority:

(i)

does or shall subject any Agent or Lender (or its Lending Office) to any fee of any kind whatsoever with respect to this Agreement, any Note or any Term Benchmark Loans or RFR Loans made by it, or change the basis of imposition of any such fee;

(ii)

does or shall impose, modify or hold applicable any reserve, special deposit, compulsory loan, insurance charge, liquidity or similar requirement against assets held by, or deposits or other liabilities in or for the account of, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender which are not otherwise included in the determination of the Term SOFR Rate or Daily Simple SOFR Rate;

(iii)

subject any Lender 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

(iv)

does or shall impose on such Lender any other condition, cost or expense (other than Taxes);

and the result of any of the foregoing is to increase the cost to such Lender of making, continuing, converting, renewing or maintaining advances or extensions of credit or to reduce any amount receivable hereunder, in each case, in respect of its Term Benchmark Loans or RFR Loans, then, in any such case, the Company, shall promptly pay such Lender, on demand, any additional amounts necessary to compensate such Lender for such additional cost or reduced amount receivable as determined by such Lender with respect to such Term Benchmark Loans or RFR Loans together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the ABR plus the Applicable Margin for Revolving Credit Loans which are ABR Loans.

(b)

In the event that at any time after the date hereof any Change in Law with respect to any Lender shall, in the opinion of such Lender, require that any Commitment of such Lender be treated as an asset or otherwise be included for purposes of calculating the appropriate amount of capital or liquidity to be maintained by such Lender or any corporation controlling such Lender, and such Change in Law shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital or liquidity, as the case may be, as a consequence of such Xxxxxx’s obligations hereunder to a level below that which such Lender or such corporation, as the case may be, could have achieved but for such Change in Law (taking into account such Lender’s or such corporation’s policies, as the case may be, with respect to capital adequacy and liquidity), then from time to time following notice by such Lender to the Company of such Change in Law as provided in clause (c) of this Section 5.20, within fifteen (15) days after demand by such Lender, the Company shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation, as the case may be, for such reduction. Notwithstanding the foregoing, no Lender shall be entitled to seek compensation under this Section 5.20(b) based on the occurrence of a Change in Law unless such Lender is generally seeking compensation from other borrowers in the United States loan market with respect to its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.20(b).

(c)

If any Lender becomes entitled to claim any additional amounts pursuant to this Section 5.20, it shall promptly notify the Company through the Administrative Agent, of the event by reason of which it has become so entitled. The Company shall not be required to make any payments to any Lender for any additional amounts pursuant to this Section 5.20 unless such Lender has given written notice to the Company, through the Administrative Agent, of its intent to request such payments prior to or within one hundred and eighty (180) days after the date on which such Xxxxxx became entitled to claim such amounts. If any Lender has notified the Company through the Administrative Agent of any increased costs pursuant to clause (a) of this Section 5.20, the Company at any time thereafter may, upon at least two (2) Business Days’ notice to the Administrative Agent (which shall promptly notify the Lenders thereof), and subject to Section 5.21, prepay or convert into ABR Loans all (but not a part) of the Term Benchmark Loans and/or RFR Loans then outstanding. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of clause (a) of this Section 5.20 with respect to such Lender, it will, if requested by the Company, and to the extent permitted by law or by the relevant Governmental Authority, endeavor in good faith to avoid or minimize the increase in costs or reduction in payments resulting from such event (including, without limitation, endeavoring to change its Lending Office); provided, however, that such avoidance or minimization can be made in such a manner that such Lender, in its sole determination, suffers no economic, legal or regulatory disadvantage. If any Lender has notified the Company, through the Administrative Agent, of any increased costs pursuant to clause (b) of this Section 5.20, the Company at any time thereafter may, upon at least three (3) Business Days’ notice to the Administrative Agent (which shall promptly notify the Lender thereof), and subject to Section 5.21 reduce or terminate the Revolving Credit Commitments in accordance with Section 5.4.

(d)

A certificate submitted by such Xxxxxx, through the Administrative Agent, to the Company shall be conclusive in the absence of manifest error. The covenants contained in this Section 5.20 shall survive the termination of this Agreement and repayment of the outstanding Loans.

5.21

Break Funding Payments

(a)

With respect to Loans that are not RFR Loans, in the event of (i) the payment of any principal of any Term Benchmark Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 5.5 or 5.6), (ii) the conversion of any Term Benchmark Loan other than on the last day of the Interest Period applicable thereto, (iii) the failure to borrow, convert, continue or prepay any Term Benchmark Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked and is revoked in accordance therewith), or (iv) the assignment of any Term Benchmark Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Company pursuant to Section 5.22, then, in any such event, the Company shall compensate each Lender for the loss, cost and expense attributable to such event. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 5.21(a) shall be delivered to the Company and shall be conclusive absent manifest error. The Company shall pay such Lender the amount shown as due on any such certificate within ten (10) days (or such later date as may be agreed by the applicable Lender) after receipt thereof.

(b)

With respect to RFR Loans, in the event of (i) the payment of principal of any RFR Loan other than on the Interest Payment Date applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 5.5 or 5.6), (ii) the failure to borrow or prepay any RFR Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 5.5 or 5.6 and is revoked in accordance therewith) or (iii) the assignment of any RFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Company pursuant to Section 5.23(h), then, in any such event, the Company shall compensate each Lender for the loss, cost and expense attributable to such event. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 5.21(b) shall be delivered to the Company and shall be conclusive absent manifest error. The Company shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.

5.22

Replacement of Lenders

In the event any Lender (i) is a Defaulting Lender, (ii) exercises its rights pursuant to Section 5.19 or (iii) requests payments pursuant to Sections 5.20 or 5.23, the Company may require, at the Company’s expense upon notice to such Lender and the Administrative Agent, and subject to Section 5.21, such Lender or the Issuing Lender to assign, at par plus accrued interest and fees, without recourse (in accordance with Section 12.6) all of its interests, rights and obligations hereunder (including all of its Revolving Credit Commitments and the Loans and other amounts at the time owing to it hereunder and its interest in the Letters of Credit) to a bank, financial institution or other entity specified by the Company; provided that (i) such assignment shall not conflict with or violate any law, rule or regulation or order of any court or other Governmental Authority, (ii) the Company shall have received the written consent of the Administrative Agent (and, in the case of an assignment of a Revolving Credit Commitment, of the Issuing Lender or the Swingline Lender), which consent shall not unreasonably be withheld, to such assignment, (iii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans (including Swingline Loans) and participations in L/C Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts) and (iv) in the case of a required assignment by the Issuing Lender, the Letters of Credit shall be cancelled and returned to the Issuing Lender. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.

5.23

Taxes

(a)

Defined Terms. For purposes of this Section 5.23, the term “applicable Law” includes FATCA, the term “Lender” includes any Issuing Lender, and the term “Withholding Agent” means the Company and the Administrative Agent.

(b)

Payments Free of Taxes. Any and all payments by or on account of any obligation of the Company under any Credit Document shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Company 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) the Administrative Agent, any Lender or the Issuing Lender, as the case may be, receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c)

Payment of Other Taxes by the Company. The Company shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(d)

Indemnification by the Company. The Company shall indemnify the Administrative Agent, or any Lender, within twenty (20) days after demand therefor, for the full amount of any Indemnified Taxes arising from any and all payments by or on account of any obligation of the Company under any Credit Document (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) that are payable or paid by the Administrative Agent or any Lender or are required to be withheld or deducted from a payment to such Person 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 Company by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e)

Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within twenty (20) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Company has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Company to do so), (ii) any Taxes attributable to such Xxxxxx’s failure to comply with the provisions of Section 12.6(d) 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 Administrative Agent in connection with any Credit 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 Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (e).

(f)

Evidence of Payments. As soon as practicable after any payment of Taxes pursuant to this Section 5.23 by the Company to a Governmental Authority, the Company shall deliver to the Administrative 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 Administrative 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 Credit Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative 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 Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.23(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)

Without limiting the generality of the foregoing,

(A)

any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B)

(I)

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 Credit Document, executed copies of 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 Credit Document, 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;

(II)

executed copies of IRS Form W-8ECI;

(III)

in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” related to the Company described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN-E; or

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(IV)

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-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-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 Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative 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 Company or the Administrative Agent to determine the withholding or deduction required to be made; and

(D)

if a payment made to a Lender under any Credit 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 Code, as applicable), such Lender shall deliver to the Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative 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 to deduct and withhold from such payment. Solely for purposes of this sub-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 Company and the Administrative Agent in writing of its legal inability to do so.

(h)

Lending Office. Any Lender claiming additional amounts payable pursuant to this Section 5.23 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Lending Office if, in the reasonable judgment of such Lender, the making of such change (i) would eliminate or reduce any such additional amounts payable to such Lender in the future and (ii) would not subject such Lender to any unreimbursed out-of-pocket cost or expense and would not otherwise be disadvantageous to such Lender.

(i)

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 5.23 (including by the payment of additional amounts pursuant to Section 5.23(b)), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made or additional amounts paid 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 clause (i) (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 clause (i), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (i) 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.

(j)

Survival. Each party’s obligations under this Section 5.23 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.

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5.24

Defaulting Lenders

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

(a)

Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 5.9;

(b)

Such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than the matters provided in Section 12.1(a) requiring the consent of such affected Lender), and the Revolving Credit Commitments and the Revolving Credit Commitment Percentages in outstanding Revolving Credit Loans of such Defaulting Lender shall not be included in determining whether the Majority Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 12.1); provided, that, except with respect to voting matters set forth in Section 12.1(a)(A) or as otherwise provided in Section 12.1, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders or of each Lender affected thereby;

(c)

if any amount outstanding in respect of Letters of Credit or Swingline Exposure exists at the time such Lender becomes a Defaulting Lender then:

(i)

all or any part of the Revolving Credit Commitment Percentage of such Defaulting Lender in Letters of Credit and Swingline Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Credit Commitment Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentages in Revolving Credit Loans and in Letters of Credit and Swingline Loans plus such Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit and Swingline Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments, (y) the conditions set forth in Section 7.2 are satisfied at such time (and, unless the Company shall have otherwise notified the Administrative Agent at such time, the Company shall be deemed to have represented and warranted that such conditions are satisfied at such time) and (z) to the extent such reallocation does not, as to any non-Defaulting Lender, cause such non-Defaulting Lender’s Revolving Credit Loans, its Protective Advances, its Swingline Loans and its Revolving Credit Commitment Percentages in Letters of Credit to exceed its Revolving Credit Commitment;

(ii)

if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Administrative Agent first, prepay such Swingline Exposure and second, Cash Collateralize, for the benefit of the Issuing Lender, the Company’s obligations corresponding to such Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 10.1 for so long as such Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit is outstanding;

(iii)

if the Company Cash Collateralizes any portion of such Defaulting Lender’s Revolving L/C Obligations pursuant to clause (ii) above, the Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 5.11 with respect to such Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit during the period such Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit is Cash Collateralized;

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(iv)

if the Revolving Credit Commitment Percentage in Letters of Credit of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 5.9 and Section 5.11 shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving Credit Commitment Percentages; and

(v)

if all or any portion of such Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit is neither reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Lender or any other Lender hereunder, all Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such Revolving Credit Commitment Percentage in Letters of Credit) and Letter of Credit fees payable under Section 5.11 with respect to such Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit shall be payable to the Issuing Lender until and to the extent that such Revolving Credit Commitment Percentage in Letters of Credit is reallocated and/or Cash Collateralized; and

(d)

so long as such Lender is a Defaulting Lender, the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s Revolving Credit Commitment Percentage in then outstanding Letters of Credit will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 5.24(c), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 5.24(c)(i) (and such Defaulting Lender shall not participate therein).

If (i) a Bankruptcy Event or Bail-In Action with respect to the parent of any Lender shall occur following the Closing Date and for so long as such event shall continue or (ii) the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Lender shall have entered into arrangements with the Company or such Lender, satisfactory to the Issuing Lender to defease any risk to it in respect of such Xxxxxx xxxxxxxxx.

In the event that the Administrative Agent, the Company, the Swingline Lender and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and the L/C Participating Interest of the Lenders shall be readjusted to reflect the inclusion of such Xxxxxx’s Revolving Credit Commitments and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than the Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Credit Commitments.

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5.25

Accounts; Cash Dominion

(a) At all times subject to the following sentence, all Deposit Accounts, Securities Accounts and Commodities Accounts (other than any Excluded Account for so long as such account is an Excluded Account) of the Credit Parties shall be Controlled Accounts. The Credit Parties will, in connection with any Deposit Account, Securities Account or Commodity Account (other than any Excluded Account for so long as such account is an Excluded Account), enter into and deliver to the Collateral Agent a Control Agreement in form and substance acceptable to the Collateral Agent: (i) with respect to Deposit Accounts, Securities Accounts and Commodities Accounts in existence on the Fifth Amendment Effective Date, within sixty (60) days of the Fifth Amendment Effective Date, (ii) with respect to Deposit Accounts, Securities Accounts and Commodities Accounts established after the Fifth Amendment Effective Date pursuant to Section 8.14, on the date such account is established and (iii) with respect to all other Deposit Accounts, Securities Accounts and Commodities Accounts established after the Fifth Amendment Effective Date, promptly but in any event within thirty (30) days of the date such account is established (or, in each case of clauses (i), (ii) and (iii), such later date as the Collateral Agent may agree in its sole discretion). Each Credit Party shall be subject to cash dominion at all times a Cash Dominion Event has occurred and is continuing. At any time that a Cash Dominion Event has occurred and is continuing, cash on hand and collections which are received into any Controlled Account (other than the Material Debt Reserve Account), and, to the extent necessary, any securities held in any Securities Account shall be liquidated and the cash proceeds thereof, shall be swept on a daily basis into the Collection Account and used to prepay Loans outstanding under this Agreement in accordance with Section 5.2(b); provided that notwithstanding anything to the contrary contained herein, any time that a Cash Dominion Event has occurred and is continuing, any Net Proceeds in respect of any Fixed Debt Priority Collateral Prepayment Event shall be deposited in the Asset Sale Reserve Account to the extent required by Section 5.6(c) and shall not be swept to the Collection Account. During any time that a Cash Dominion Event has occurred and is continuing (A) all proceeds of any Loan shall be deposited into a Deposit Account that is a Controlled Account and maintained with the Administrative Agent and (B) the Company shall accurately report to the Administrative Agent the daily balance of the Controlled Accounts to ensure the proper transfer of funds as set forth above.

(b) In the event during the Asset Sale Reserve Period, the Company desires to use cash on deposit in the Asset Sale Reserve Account to (i) repay, redeem, retire, defease, replace, refinance or repurchase the Fixed Debt or any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien or (ii) invest in any property or assets to be used by the Parent, the Company or a Restricted Subsidiary in a Permitted Business that would constitute Fixed Debt Priority Collateral (a transaction under clause (i) or clause (ii) above, a “Permitted Transaction”), the Company shall, promptly following any determination by the Company of an election to apply cash on deposit in the Asset Sale Reserve Account in accordance with this Section 5.25(b) (in event no later than three (3) Business Days prior to the date of any such application of cash on deposit in the Asset Sale Reserve Account), deliver to the Administrative Agent a certificate of a Responsible Officer of the Company specifying in reasonable detail the Permitted Transaction, the proposed date thereof and the amount of cash on deposit in the Asset Sale Reserve Account to be applied towards the Permitted Transaction (the “Requested Release”) and certifying that Permitted Transaction is permitted in accordance with the terms of (x) this Agreement and (y) the Fixed Debt Documents and any indenture or other document governing the terms of any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien. In the event the Company delivers to the Administrative Agent a certificate in accordance with this Section 5.25(b), on the date of the Permitted Transaction, an amount of cash equal to Requested Release shall be transferred to a Deposit Account specified by the Company and shall be applied by the Company in accordance with Permitted Transaction described in the certificate delivered to the Administrative Agent in accordance with this Section 5.25(b). Notwithstanding anything to the contrary set forth herein, if the Asset Sale Reserve Period ends as a result of the Cash Dominion Event that commenced such Asset Sale Reserve Period no longer being continuing, the Administrative Agent shall promptly apply funds credited to the Asset Sale Reserve Account at the Company’s direction for any purpose not prohibited hereunder. Notwithstanding the foregoing, to the extent any funds credited to the Asset Sale Reserve Account constitute Net Proceeds of a Fixed Debt Priority Collateral Prepayment Event, the application of such proceeds shall be subject to Section 5.6(c).

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Representations and Warranties

In order to induce the Lenders to enter into this Agreement and to make the Loans and to induce the Issuing Lenders to issue, and the Participating Lenders to participate in, the Letters of Credit, the Parent and the Company each hereby represent and warrant to each Lender and each Agent, on and as of the Closing Date and on the date of each Loan made or Letter of Credit issued thereafter, that:

6.1

Corporate Existence; Compliance with Law

Each Credit Party and each of its Restricted Subsidiaries (i) is a limited liability company, unlimited liability company, partnership or corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, (ii) has the power and authority and the legal right to own and operate its property, to lease the property it operates and to conduct the business in which it is currently engaged, except to the extent that the failure to have such power, authority, or rights could not reasonably be expected to have a Material Adverse Effect, (iii) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect and (iv) is in compliance with all applicable Requirements of Law, except to the extent that the failure to comply therewith could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.

6.2

Corporate Power; Authorization

Each Credit Party has the power and authority and the legal right to make, deliver and perform the Credit Documents to which it is a party; the Company has the power and authority and legal right to borrow hereunder and to have Letters of Credit issued for its account hereunder. Each Credit Party has taken all necessary corporate, stockholder, partnership or limited liability company action to authorize the execution, delivery and performance of the Credit Documents to which it is a party and, in the case of the Company, to authorize the borrowings hereunder and the issuance of Letters of Credit for its account hereunder. No consent or authorization of, or filing with, any Person (including, without limitation, any Governmental Authority) is required in connection with the execution, delivery or performance by any Credit Party, or the validity or enforceability against any Credit Party, of any Credit Document to the extent that it is a party thereto, other than any such consent or authorization which has been obtained or filing which has been made to the extent required hereunder, or the failure of which to obtain could have a Material Adverse Effect.

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6.3

Enforceable Obligations

Each of the Credit Documents has been duly executed and delivered on behalf of each Credit Party party thereto and each of such Credit Documents constitutes the legal, valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

6.4

No Conflict with Law or Contractual Obligations

The performance of each Credit Document, and the use of the proceeds of the Loans and of drawings under the Letters of Credit will not violate any Requirement of Law or any material Contractual Obligation (including under such Credit Party’s organizational documents) applicable to or binding upon any Credit Party, any of its Restricted Subsidiaries or any of its properties or assets, and will not result in the creation or imposition of (or the obligation to create or impose) any Lien (other than any Liens created pursuant to the Credit Documents) on any of its or their respective properties or assets pursuant to any Requirement of Law applicable to it or them, as the case may be, or any of its or their Contractual Obligations, except, in the case of any Contractual Obligations, for any such violations which could not reasonably be expected to have a Material Adverse Effect.

6.5

No Material Litigation

No litigation or investigation or proceeding of or by any Governmental Authority or any other Person is pending or has been overtly threatened against any Credit Party or any of its Restricted Subsidiaries, (i) with respect to the validity, binding effect or enforceability of any Credit Document, or with respect to the Loans made hereunder, the use of proceeds thereof or of any drawings under a Letter of Credit, and the other transactions contemplated hereby or thereby, or (ii) which could reasonably be expected to have a Material Adverse Effect.

6.6

Borrowing Base Certificate

At the time of delivery of each Borrowing Base Certificate, assuming that any eligibility criteria that requires the approval or satisfaction of the Administrative Agent has been approved by or is satisfactory to the Administrative Agent, each Account reflected therein as eligible for inclusion in the Borrowing Base is an Eligible Account, the Product Inventory reflected therein as eligible for inclusion in the Borrowing Base constitutes Eligible Inventory, each Commodity Account reflected therein as eligible for inclusion in the Borrowing Base constitutes an Eligible Futures Account and each Dollar or Cash Equivalent reflected therein as eligible for inclusion in the Borrowing Base constitutes Eligible Cash Collateral.

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6.7

Investment Company Act

No Credit Party is required to register as an “investment company” (as such term is defined or used in the Investment Company Act of 1940, as amended).

6.8

Federal Reserve Regulations

No part of the proceeds of any of the Loans or any drawing under a Letter of Credit will be used to “purchase” or “carry” “margin stock” within the meaning of Regulation U of the Board or for any other purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X of the Board. Neither the Company nor any of its Restricted Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under said Regulation U.

6.9

No Default

No Credit Party nor any of their Restricted Subsidiaries is in default in the payment or performance of any of its or their Contractual Obligations in any respect which could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Restricted Subsidiaries is in default under any order, award or decree of any Governmental Authority or arbitrator binding upon or affecting it or them or by which any of its or their properties or assets may be bound or affected in any respect which could reasonably be expected to have a Material Adverse Effect, and no such order, award or decree could reasonably be expected to materially adversely affect the ability of the Company and its Restricted Subsidiaries taken as a whole to carry on their businesses as presently conducted or the ability of any Credit Party to perform its obligations under any Credit Document to which it is a party.

6.10

Taxes

Each Credit Party and their Restricted Subsidiaries has filed or caused to be filed or has timely requested an extension to file or has received an approved extension to file all Federal and all other material tax returns which are required to have been filed, and has paid all material Taxes shown to be due and payable on said returns or extension requests or on any assessments made against it or any of its property and all other material Taxes imposed on it or any of its property by any Governmental Authority (other than those the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided in the books of the Company or its Restricted Subsidiaries, as the case may be); and no claims are being asserted in writing with respect to any such material Taxes (other than those the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided in the books of the Credit Party or its Restricted Subsidiaries, as the case may be).

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6.11

Subsidiaries

The Subsidiaries of the Company listed on Schedule 6.11 constitute all of the Subsidiaries of the Parent and the Company as of the Fifth Amendment Effective Date.

6.12

Ownership of Property; Liens

As of the Fifth Amendment Effective Date, Schedule 6.12 describes the Credit Parties’ owned and leased Material Real Property Assets. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each of the Parent and its Restricted Subsidiaries has good and marketable title to, or valid Leasehold interests in or rights to use, all its Material Real Property Assets and personal property material to its business taken as a whole, and none of such property is subject to any Lien except for Liens permitted by Section 9.3.

6.13

ERISA; Canadian Pension Plans

(a)

No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to have a Material Adverse Effect. The present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Accounting Standards Codification 715-30) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of all such underfunded Plans, in each case by an amount that, if required to be paid by the Company and its Subsidiaries, would reasonably be expected to have a Material Adverse Effect.

(b)

Each Canadian Credit Party is in compliance with the requirements of the Employment Pension Plans Act (Alberta), the Pension Benefits Act (Ontario) and other federal or provincial laws with respect to each (i) Canadian Pension Plan, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, and (ii) Canadian Defined Benefit Plan. No fact or situation that may reasonably be expected to result in a Material Adverse Effect exists in connection with any Canadian Pension Plan or Canadian Defined Benefit Plan. No Canadian Pension Event has occurred. No Canadian Credit Party has a Canadian Defined Benefit Plan. No lien has arisen, xxxxxx or inchoate, in respect of any Canadian Credit Party or their property in connection with (a) any Canadian Pension Plan, or (b) any “registered pension plan” as defined in subsection 248(1) of the Income Tax Act (Canada) that is sponsored and maintained by a third party to which a Credit Party contributes in respect of some or all of its employees (in each case, save for contribution amounts not yet due).

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6.14

Environmental Matters

(a)

The Real Properties do not contain any Materials of Environmental Concern in concentrations which constitute a violation of, or could reasonably be expected to give rise to liability under, Environmental Laws that could reasonably be expected to have a Material Adverse Effect.

(b)

The Real Properties and all operations at the Real Properties are in compliance with all, and have not violated any, applicable Environmental Laws, except for failure to be in compliance or for such violation that could not reasonably be expected to have a Material Adverse Effect, and there is no contamination at, under or about the Real Properties that could reasonably be expected to have a Material Adverse Effect.

(c)

Neither the Company nor any of its Restricted Subsidiaries has received any notice of violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws that could reasonably be expected to have a Material Adverse Effect, nor does the Company or any Restricted Subsidiary have knowledge that any such action is being contemplated, considered or threatened.

(d)

There are no judicial proceedings or governmental or administrative actions pending or threatened under any Environmental Law to which the Company or any Restricted Subsidiary is or will be named as a party that could reasonably be expected to have a Material Adverse Effect, nor