Exhibit 10.3

 

Execution Version

 

AMENDMENT NO. 8 TO CREDIT AGREEMENT

 

This AMENDMENT NO. 8 TO CREDIT AGREEMENT (this “Agreement”), dated as of February 2, 2022 (the “Signing Date”), is entered into by and among BKRF OCB, LLC, a Delaware limited liability company (the “Borrower”), BKRF OCP, LLC, a Delaware limited liability company (“Holdings”), Bakersfield Renewable Fuels, LLC, a Delaware limited liability company (the “Project Company”), Orion Energy Partners TP Agent, LLC, in its capacity as the administrative agent and collateral agent (in such capacity, the “Administrative Agent”), and the Tranche A Lenders and Tranche B Lenders party hereto, constituting 100% of the Tranche A Lenders and the Tranche B Lenders party to the Credit Agreement (as defined below) (the “Signatory Lenders”).  As used in this Agreement, capitalized terms which are not defined herein shall have the meanings ascribed to such terms in the Credit Agreement unless otherwise specified.

 

WITNESSETH

 

WHEREAS, the Borrower, Holdings, the Administrative Agent and each Tranche A Lender and Tranche B Lender from time to time party thereto have entered into that certain Credit Agreement, dated as of May 4, 2020 (as amended, amended and restated, modified and supplemented on or prior to the date hereof, the “Credit Agreement” and the Credit Agreement as expressly amended by this Agreement, the “Amended Credit Agreement”);

 

WHEREAS, the HoldCo Borrower, the HoldCo Pledgor, Orion Energy Partners TP Agent, LLC, in its capacity as the HoldCo Administrative Agent and HoldCo Collateral Agent (in such capacity, the “HoldCo Agent”) and each HoldCo Lender from time to time party thereto have entered into that certain Credit Agreement, dated as of May 4, 2020 (as amended, amended and restated, modified and supplemented on or prior to the date hereof, the “HoldCo Credit Agreement”);

 

WHEREAS, the Borrower and the Lenders and the HoldCo Borrower and the HoldCo Lenders entered into the Credit Agreement and the HoldCo Credit Agreement, respectively, based on certain estimated costs to install, develop and construct the Project;

 

WHEREAS, the scope of the Project has expanded to include additional capabilities and equipment, which change certain assumptions made regarding the cost of installing, developing and constructing the Project;

 

WHEREAS, the Credit Agreement needs to be revised to more accurately reflect the updated scope and cost estimates of the Project;

 

WHEREAS, pursuant to this Agreement, the Borrower has requested, and the parties hereto have agreed, subject to the satisfaction of the conditions precedent set forth in this Agreement, to amend the Credit Agreement effective as of the Eighth Amendment Effective Date as set forth herein; and

 

WHEREAS, the Borrower, Holdings, the Project Company, the Administrative Agent and the Signatory Lenders entered into that certain Waiver No. 5 to Credit Agreement, dated as of the date hereof (the “Waiver”), pursuant to which the Signatory Lenders waived the Defaults and Events of Default specified therein.

 

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

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1.          Amendments.  Subject to the satisfaction of the conditions precedent set forth in Section 4 hereof, as of the Eighth Amendment Effective Date, the Borrower, the other Loan Parties, the Administrative Agent and the Signatory Lenders, who constitute all of the Lenders under the Credit Agreement, hereby agree that the Credit Agreement is amended as follows:

 

(a)          the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in Exhibit A hereto;

 

(b)          a new Exhibit X (Approved Change Orders) to the Credit Agreement is hereby added to the Credit Agreement as set forth in Exhibit B attached hereto.

 

(c)          Annex III (Target Debt Balances) to the Credit Agreement is hereby deleted in its entirety and replaced in its entirety as set forth in Exhibit C attached hereto.

 

(d)          Schedule 3.22(b) (Permitted Indebtedness) to the Credit Agreement is hereby deleted in its entirety and replaced in its entirety as set forth in Exhibit D-1 attached hereto. 

 

(e)          Schedule 3.23 (Transactions with Affiliates) to the Credit Agreement is hereby deleted in its entirety and replaced in its entirety as set forth in Exhibit D-2 attached hereto.

 

(f)          Schedule 5.06 (Insurance Requirements) to the Credit Agreement is hereby deleted in its entirety and replaced in its entirety as set forth in Exhibit D-3 attached hereto.

 

(g)          Schedule 5.25(a) (Feedstock Execution Plan) to the Credit Agreement is hereby deleted in its entirety and replaced in its entirety as set forth in Exhibit D-4 attached hereto.

 

2.           Amendment No. 6 Fees.

 

(a)          As consideration for the upsizing, waivers and forbearances provided by the Lenders pursuant to Amendment No. 6 to the Credit Agreement, dated December 20, 2021 (the “Sixth Amendment”) and the Forbearance and Conditional Waiver Agreement, dated December 20, 2021 (as amended, amended and restated, modified and supplemented on or prior to the date hereof, the “Forbearance and Conditional Waiver Agreement”) and as consideration  for the waivers and forbearances provided by the HoldCo Lenders pursuant to Consent No. 5, Forbearance and Conditional Waiver Agreement dated as of December 20, 2021 (as amended, amended and restated, modified and supplemented on or prior to the date hereof, “Consent No. 5”), pursuant to Section 3 of the Sixth Amendment, the Borrower agreed to pay the Amendment & Consent Premium (as defined therein, the “Amendment & Consent Premium”).  Further to Section 3 of the Sixth Amendment, the Borrower hereby agrees to pay to each Lender an amendment and consent premium in the form of warrants to obtain the shares of common equity at the strike prices set forth in Exhibit E hereto, substantially in the form attached hereto as Exhibit F (the “GCEH Warrants”), which GCEH Warrants shall be payable to each Lender (or its designated Affiliate) ratably (the “Amendment & Consent Premium”).  The Amendment & Consent Premium shall be due, earned and payable on the Eighth Amendment Effective Date. 

 

(b)          The Borrower hereby agrees that the Amendment & Consent Premium shall be paid without set-off, deduction or counterclaim and free and clear of, and without deduction by reason of, any taxes.

 

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(c)          All fees and premiums hereunder, once paid, are nonrefundable and are in addition to and not creditable against any other fee or premium payable to any Lender and/or its affiliates in connection with the transactions contemplated by the Credit Agreement or otherwise.

 

(d)          For U.S. federal income tax purposes, the Amendment & Consent Premium shall be treated as a payment on the loan made pursuant to the Credit Agreement (in accordance with the ordering provisions of Treasury Regulations Section 1.1275-2(a)).  Each of the Lenders and the Borrower agrees to file tax returns consistent with such treatment.

 

3.           Representations and Warranties.  As of the Eighth Amendment Effective Date, each Loan Party hereby represents and warrants to the other parties hereto that:

 

(a)          Each Loan Party has full corporate, limited liability company or other organizational powers, authority and legal right to enter into, deliver and perform its respective obligations under this Agreement, and has taken all necessary corporate, limited liability company or other organizational action to authorize the execution, delivery and performance by it of this Agreement.  This Agreement has been duly executed and delivered by the Loan Parties, is in full force and effect and constitutes a legal, valid and binding obligation of the Loan Parties, enforceable against such Loan Party in accordance with its respective terms, except as enforcement may be limited (i) by Bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing. 

 

(b)          The execution, delivery and performance by each Loan Party of this Agreement does not and will not (i) conflict with the Organizational Documents of such Loan Party, (ii) conflict with or result in a breach of, or constitute a default under, any indenture, loan agreement, mortgage, deed of trust or other instrument or agreement to which such Loan Party is a party or by which it is bound or to which such Loan Party’s property or assets are subject (other than any Material Project Document to which such Loan Party is a party), except where such contravention or breach could not reasonably be expected to be material and adverse to the Loan Parties or Lenders, (iii) conflict with or result in a breach of, or constitute a default under, any Material Project Document to which such Loan Party is a party, (iv) conflict with or result in a breach of, or constitute a default under, in any material respect, any Applicable Law, except where such contravention or breach could not reasonably be expected to have a Material Adverse Effect, or (v) with respect to each Loan Party, result in the creation or imposition of any Lien (other than a Permitted Lien) upon any of such Loan Party’s property or the Collateral.

 

(c)          After giving effect to the waivers set forth in the Waiver and the amendments set forth in this Agreement, no Default or Event of Default has occurred and is continuing or would result from the transactions contemplated in this Agreement.

 

(d)          After giving effect to the waivers set forth in the Waiver and the amendments set forth in this Agreement, the representations and warranties of each of the Loan Parties set forth in Article III of the Credit Agreement and in each other Financing Document are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).

 

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4.         Effectiveness; Conditions Precedent.  This Agreement shall become effective on the first date on which each of the following conditions have been satisfied or waived (such date, the “Eighth Amendment Effective Date”):

 

(a)          This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the other parties hereto.

 

(b)          Borrower has arranged for payment on the Eighth Amendment Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.

 

(c)          substantially concurrently with the Eighth Amendment Effective Date, (i) one or more parent companies of the Pledgor shall have deposited into the (A) Construction Account, as a common equity contribution to the Pledgor and the Borrower, an additional amount equal to at least $77,400,000 and (B) Debt Service Revenue Account, as common equity contribution to the Pledgor and the Borrower, an additional amount equal to $18,000,000, (ii) the Borrower shall repay in full in cash all of the then-outstanding Bridge Loans (plus any premium in respect thereof) and (iii) the HoldCo Lender Backstop Agreement shall have been terminated.

 

(d)          The HoldCo Lenders shall have executed and delivered to the HoldCo Administrative Agent, the Master Assignment and Assumption Agreement, dated as of the Eighth Amendment Effective Date, by and among the HoldCo Lenders, as Assignors, the Sponsor, as Assignee and the HoldCo Administrative Agent.

 

(e)          The Lenders shall have received a copy of a side letter agreement, dated as of the Eighth Amendment Effective Date, executed by Sponsor and the Lender Equity Owners, which side letter agreement shall be in form and substance reasonably satisfactory to the Administrative Agent.

 

(f)          The Administrative Agent shall have received the Amended and Restated Control, Operations and Maintenance Agreement, dated as of the Eighth Amendment Effective Date, executed by Project Company and GCE Operating, which shall be in the form attached hereto as Exhibit G.

 

(g)          The Administrative Agent shall have received a payoff letter relating to the intercompany loan, dated as of the Eighth Amendment Effective Date, executed by each party thereto, which shall be in form and substance reasonably satisfactory to the Administrative Agent.

 

(h)          Schedule I to the Holdco Borrower LLC Agreement has been updated and amended in a form reasonably satisfactory to the Administrative Agent to account for the issuance of the Equity Kicker to the Lender Equity Owners through the Eighth Amendment Effective Date.

 

(i)          As of the Eighth Amendment Effective Date, the Borrower has delivered a copy of each of the Financial Model, the 2022 Operating Budget, the Construction Budget and the Construction Schedule to the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent; (it being acknowledged and agreed that the copy of the Financial Model delivered to the Administrative Agent as of December 16, 2021, the 2022 Operating Budget delivered to the Administrative Agent as of December 16, 2021, the Construction Budget delivered to the Administrative Agent as of December 16, 2021 and the Construction Schedule delivered to the Administrative Agent as of December 16, 2021, in each case is in form and substance reasonably satisfactory to the Administrative Agent and the Signatory Lenders).

 

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(j)          The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i) that attached to such certificate is a correct and complete copy of the Organizational Documents for such Person; (ii) attached to such certificate is a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Person with respect to this Agreement and the Waiver, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; (iii) that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) has not been amended since the date thereof; (iv) as to the incumbency and specimen signature of each officer, member or partner (as applicable) of such Person executing the Financing Documents to which such Person is or is intended to be a party (and each Lender may conclusively rely on such certificate until it receives notice in writing from such Person); and (v) as to the qualification of such Person to do business in each jurisdiction where its operations require qualification to do business and as to the absence of any pending proceeding for the dissolution or liquidation of such Person.

 

(k)          The Borrower has delivered to the Administrative Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Eighth Amendment Effective Date certifying (i)  that each of the conditions set forth in this Section 4 have been satisfied in accordance with the terms hereof, (ii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in the Financing Documents are true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties are true and correct in all respects) on and as of the Eighth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date) and (iii) after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the Eighth Amendment Effective Date.

 

(l)            As consideration for the Sixth Amendment and the Forbearance and Conditional Waiver Agreement and Consent No. 5, as of the Eighth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 2.

 

(m)          As of the Eighth Amendment Effective Date, the Agent Reimbursement Letter shall have been amended and restated, executed and delivered by each of the Borrower and the Administrative Agent, and shall be in form and substance reasonably satisfactory to the Administrative Agent.

 

5.          Reaffirmation of Guarantees and Security Interests

 

The Borrower, Holdings and Project Company (each, a “Reaffirming Party”) hereby acknowledges that it (a) has reviewed the terms and provisions of this Amendment, (b) consents to the amendments to the Credit Agreement effected pursuant to this Amendment and consents to the terms, conditions and other provisions of this Amendment, and (c) consents to each of the transactions contemplated hereby. Each Reaffirming Party hereby confirms that each Financing Document to which it is a party or otherwise bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may be, to the fullest extent possible in accordance with the Financing Documents the payment and performance of all Obligations under and as defined in the Amended Credit Agreement (including all such Obligations as amended and reaffirmed pursuant to this Amendment) under each of the Financing Documents to which it is a party.

 

5

 

Without limiting the generality of the foregoing, each Reaffirming Party hereby confirms, ratifies and reaffirms its payment obligations, guarantees, pledges, grants of security interests and other obligations, as applicable, under and subject to the terms of each of the Financing Documents to which it is a party. For the avoidance of doubt, nothing in this Amendment shall constitute a new grant of security interest. Each Reaffirming Party hereby confirms that no additional filings or recordings need to be made, and no other actions need to be taken, by such Reaffirming Party as a consequence of this Amendment in order to maintain the perfection and priority of the security interests created by the Financing Documents to which it is a party.

 

Each Reaffirming Party acknowledges and agrees that each of the Financing Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its payment obligations, guarantees, pledges, grants of security interests and other obligations, as applicable, under and subject to the terms of such Financing Documents shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment or any of the transactions contemplated hereby.

 

6.           Consent. Subject to the occurrence of the Eighth Amendment Effective Date, the Signatory Lenders, who constitute all of the Lenders under the Credit Agreement, hereby consent to the following:

 

(a)          the termination of the HoldCo Lender Backstop Agreement pursuant to a termination agreement in the form attached hereto as Exhibit H; and

 

(b)          the amendment and restatement of the COMA in the form attached hereto as Exhibit G.

 

7.           Miscellaneous.

 

(a)         Effect of Amendments.  From and after the Eighth Amendment Effective Date, the Credit Agreement shall be construed after giving effect to the amendments set forth in Section 1 hereof and all references to the Credit Agreement in the Financing Documents shall be deemed to refer to the Amended Credit Agreement.  If the Eighth Amendment Effective Date has not occurred on or prior to February 23, 2022, this Agreement shall be null and void and the Credit Agreement and other Financing Documents, as in effect as of the date hereof, shall continue in full force and effect pursuant to the terms thereof.

 

(b)         No Other Modification.  Except as expressly modified by this Agreement and the Waiver, the Credit Agreement and the other Financing Documents are and shall remain unchanged and in full force and effect, and nothing contained in this Agreement shall, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, or any of the other parties, or shall alter, modify, amend or in any way affect any of the other terms, conditions, obligations, covenants or agreements contained in the Credit Agreement which are not by the terms of this Agreement being amended, or alter, modify or amend or in any way affect any of the other Financing Documents.

 

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(c)          Successor and Assigns.  This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and permitted assigns.

 

(d)        Incorporation by Reference.  Sections 10.07 (Severability), 10.11 (Headings), 10.09 (Governing Law; Jurisdiction; Etc.) and 10.17 (Electronic Execution of Assignments and Certain Other Documents) of the Credit Agreement are hereby incorporated by reference herein, mutatis mutandis.

 

(e)          Financing Document.  This Agreement shall be deemed to be a Financing Document.

 

(f)         Counterparts; Integration.  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  The Amended Credit Agreement and the other Financing Documents to which a Loan Party is party constitute the entire contract between and among the parties relating to the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Delivery of an executed counterpart of a signature page to this Agreement by telecopy or scanned electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

 

(g)          Electronic Signatures.  The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the parties hereto, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

(h)          Severability.  Any provision of this Agreement 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.

 

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(i)          Release.  IN ORDER TO INDUCE THE ADMINISTRATIVE AGENT AND THE LENDERS TO ENTER INTO THIS AGREEMENT, EACH OF THE LOAN PARTIES AND THEIR RESPECTIVE SUCCESSORS-IN-TITLE AND ASSIGNEES AND, TO THE EXTENT THE SAME IS CLAIMED BY RIGHT OF, THROUGH OR UNDER ANY OF THE LOAN PARTIES, FOR THEIR RESPECTIVE PAST, PRESENT AND FUTURE EMPLOYEES, AGENTS, REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, AND TRUSTEES (EACH, A “RELEASING PARTY,” AND COLLECTIVELY, THE “RELEASING PARTIES”), DOES HEREBY REMISE, RELEASE AND DISCHARGE, AND SHALL BE DEEMED TO HAVE FOREVER REMISED, RELEASED AND DISCHARGED, THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS, AND THE ADMINISTRATIVE AGENT’S AND EACH LENDER’S RESPECTIVE SUCCESSORS-IN-TITLE, LEGAL REPRESENTATIVES AND ASSIGNEES, PAST, PRESENT AND FUTURE OFFICERS, DIRECTORS, AFFILIATES, SHAREHOLDERS, MEMBERS, MANAGERS, TRUSTEES, AGENTS, EMPLOYEES, BOARD OBSERVERS, CONSULTANTS, EXPERTS, ADVISORS, ATTORNEYS AND OTHER PROFESSIONALS AND ALL OTHER PERSONS AND ENTITIES TO WHOM ANY OF THE FOREGOING WOULD BE LIABLE IF SUCH PERSONS OR ENTITIES WERE FOUND TO BE LIABLE TO ANY RELEASING PARTY, OR ANY OF THEM (COLLECTIVELY HEREINAFTER, THE “RELEASED PARTIES”), FROM ANY AND ALL MANNER OF ACTION AND ACTIONS, CAUSE AND CAUSES OF ACTION, CLAIMS, CHARGES, DEMANDS, COUNTERCLAIMS, OFFSET RIGHTS, RIGHTS OF RECOUPMENT, DEFENSES, SUITS, DEBTS, DUES, SUMS OF MONEY, ACCOUNTS, RECKONINGS, BONDS, BILLS, SPECIALTIES, COVENANTS, CONTRACTS, CONTROVERSIES, DAMAGES, JUDGMENTS, EXPENSES, EXECUTIONS, LIENS, CLAIMS OF LIENS, CLAIMS OF COSTS, PENALTIES, ATTORNEYS’ FEES, OR ANY OTHER COMPENSATION, RECOVERY OR RELIEF ON ACCOUNT OF ANY LIABILITY, OBLIGATION, DEMAND OR CAUSE OF ACTION OF WHATEVER NATURE, WHETHER IN LAW, EQUITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY SO CALLED “LENDER LIABILITY” CLAIMS, INTEREST OR OTHER CARRYING COSTS, PENALTIES, LEGAL, ACCOUNTING AND OTHER PROFESSIONAL FEES AND EXPENSES AND INCIDENTAL, CONSEQUENTIAL AND PUNITIVE DAMAGES PAYABLE TO THIRD PARTIES, OR ANY CLAIMS FOR AVOIDANCE OR RECOVERY UNDER ANY OTHER FEDERAL, STATE OR FOREIGN LAW EQUIVALENT), WHETHER KNOWN OR UNKNOWN, FIXED OR CONTINGENT, JOINT AND/OR SEVERAL, SECURED OR UNSECURED, DUE OR NOT DUE, PRIMARY OR SECONDARY, LIQUIDATED OR UNLIQUIDATED, CONTRACTUAL OR TORTIOUS, DIRECT, INDIRECT, OR DERIVATIVE, ASSERTED OR UNASSERTED, FORESEEN OR UNFORESEEN, SUSPECTED OR UNSUSPECTED, NOW EXISTING, HERETOFORE EXISTING OR WHICH MAY HERETOFORE ACCRUE AGAINST ANY OF THE RELEASED PARTIES SOLELY IN THEIR CAPACITIES AS SUCH UNDER THE FINANCING DOCUMENTS, WHETHER HELD IN A PERSONAL OR REPRESENTATIVE CAPACITY, AND WHICH ARE BASED ON ANY ACT, FACT, EVENT OR OMISSION OR OTHER MATTER, CAUSE OR THING OCCURRING AT OR FROM ANY TIME PRIOR TO AND INCLUDING THE DATE HEREOF IN ANY WAY, DIRECTLY OR INDIRECTLY ARISING OUT OF, CONNECTED WITH OR RELATING TO THE AMENDED CREDIT AGREEMENT OR ANY OTHER FINANCING DOCUMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, AND ALL OTHER AGREEMENTS, CERTIFICATES, INSTRUMENTS AND OTHER DOCUMENTS AND STATEMENTS (WHETHER WRITTEN OR ORAL) RELATED TO ANY OF THE FOREGOING (EACH, A “CLAIM,” AND COLLECTIVELY, THE “CLAIMS”), IN EACH CASE, EXCLUDING ANY CLAIM TO THE EXTENT SUCH CLAIM AROSE OUT OF, OR WAS CAUSED BY, THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF, OR MATERIAL BREACH OF THE AMENDED CREDIT AGREEMENT OR ANY OTHER FINANCING DOCUMENT BY, SUCH RELEASED PARTIES. EACH RELEASING PARTY FURTHER STIPULATES AND AGREES WITH RESPECT TO ALL SUCH CLAIMS, THAT IT HEREBY WAIVES ANY AND ALL PROVISIONS, RIGHTS, AND BENEFITS CONFERRED BY ANY LAW OF ANY STATE OF THE UNITED STATES.

 

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized signatories as of the day and year first above written.

 

 

BKRF OCB, LLC,

 

as the Borrower

 

 

 

By:

/s/ RICHARD PALMER

 

Name:

Richard Palmer

 

Title:

President

 

 

 

BKRF OCP, LLC,

 

as Holdings

 

 

 

By:

/s/ RICHARD PALMER

 

Name:

Richard Palmer

 

Title:

President

 

 

 

BAKERSFIELD RENEWABLE FUELS, LLC,

 

as Project Company

 

 

 

By:

/s/ RICHARD PALMER

 

Name:

Richard Palmer

 

Title:

President

 

[Signature Page to Amendment No. 8 to Credit Agreement]

 

 

 

ORION ENERGY PARTNERS TP AGENT, LLC,

 

as Administrative Agent

 

 

 

By:

/s/ GERRIT NICHOLAS

 

Name:

Gerrit Nicholas

 

Title:

Managing Partner

 

[Signature Page to Amendment No. 8 to Credit Agreement]

 

 

 

ORION ENERGY CREDIT OPPORTUNITIES

 

FUND II, L.P.,

 

as a Lender

 

 

 

By: Orion Energy Credit Opportunities Fund II GP, L.P.,

its general partner

 

 

 

By: Orion Energy Credit Opportunities Fund II

Holdings, LLC, its general partner

 

 

 

By:

/s/ GERRIT NICHOLAS

 

Name:

Gerrit Nicholas

 

Title:

Managing Partner

 

 

 

ORION ENERGY CREDIT OPPORTUNITIES

FUND II PV, L.P.,

 

as a Lender

 

 

 

By: Orion Energy Credit Opportunities Fund II GP, L.P.,

its general partner

 

 

 

By: Orion Energy Credit Opportunities Fund II

Holdings, LLC, its general partner

 

 

 

By:

/s/ GERRIT NICHOLAS

 

Name:

Gerrit Nicholas

 

Title:

Managing Partner

 

[Signature Page to Amendment No. 8 to Credit Agreement]

 

 

 

ORION ENERGY CREDIT OPPORTUNITIES

 

FUND II GPFA, L.P.,

 

as a Lender

 

 

 

By: Orion Energy Credit Opportunities Fund II GP, L.P.,

its general partner

 

 

 

By: Orion Energy Credit Opportunities Fund II

Holdings, LLC, its general partner

 

 

 

By:

/s/ GERRIT NICHOLAS

 

Name:

Gerrit Nicholas

 

Title:

Managing Partner

 

 

 

ORION ENERGY CREDIT OPPORTUNITIES

 

GCE CO-INVEST, L.P.,

 

as a Lender

 

 

 

By: Orion Energy Credit Opportunities Fund II GP, L.P.,

its general partner

 

 

 

By: Orion Energy Credit Opportunities Fund II

Holdings, LLC, its general partner

 

 

 

By:

/s/ GERRIT NICHOLAS

 

Name:

Gerrit Nicholas

 

Title:

Managing Partner

 

 

[Signature Page to Amendment No. 8 to Credit Agreement]

 

 

 

ORION ENERGY CREDIT OPPORTUNITIES

 

FUND III, L.P.,

 

as a Lender

 

 

 

By: Orion Energy Credit Opportunities Fund III GP,

L.P., its general partner

 

 

 

By: Orion Energy Credit Opportunities Fund III

Holdings, LLC, its general partner

 

 

 

By:

/s/ GERRIT NICHOLAS

 

Name:

Gerrit Nicholas

 

Title:

Managing Partner

 

 

 

ORION ENERGY CREDIT OPPORTUNITIES

 

FUND III PV, L.P.,

 

as a Lender

 

 

 

By: Orion Energy Credit Opportunities Fund III GP,

L.P., its general partner

 

 

 

By: Orion Energy Credit Opportunities Fund III

Holdings, LLC, its general partner

 

 

 

By:

/s/ GERRIT NICHOLAS

 

Name:

Gerrit Nicholas

 

Title:

Managing Partner

 

[Signature Page to Amendment No. 8 to Credit Agreement]

 

 

 

ORION ENERGY CREDIT OPPORTUNITIES

 

FUND III GPFA, L.P.,

 

as a Lender

 

 

 

By: Orion Energy Credit Opportunities Fund III GP,

L.P., its general partner

 

 

 

By: Orion Energy Credit Opportunities Fund III

Holdings, LLC, its general partner

 

 

 

By:

/s/ GERRIT NICHOLAS

 

Name:

Gerrit Nicholas

 

Title:

Managing Partner

 

 

 

ORION ENERGY CREDIT OPPORTUNITIES

 

FUND III GPFA PV, L.P.,

 

as a Lender

 

 

 

By: Orion Energy Credit Opportunities Fund III GP,

L.P., its general partner

 

 

 

By: Orion Energy Credit Opportunities Fund III

Holdings, LLC, its general partner

 

 

 

By:

/s/ GERRIT NICHOLAS

 

Name:

Gerrit Nicholas

 

Title:

Managing Partner

 

[Signature Page to Amendment No. 8 to Credit Agreement]

 

 

 

VOYA RENEWABLE ENERGY

INFRASTRUCTURE ORIGINATOR L.P., as Lender

 

VOYA RENEWABLE ENERGY

INFRASTRUCTURE ORIGINATOR i llc,

 

as a Lender

 

 

 

By: Voya Alternative Asset Management LLC, as Agent

 

 

 

By:

/s/ EDWARD LEVIN

 

Name:

Edward Levin

 

Title:

Senior Vice President

 

 

[Signature Page to Amendment No. 8 to Credit Agreement]

 

 

 

LIF AIV 1, L.P.,

 

as a Lender

 

 

 

By: GCM Investments GP, LLC, its General Partner

 

 

 

By:

/s/ TODD HENIGAN

 

Name:

Todd Henigan

 

Title:

 

 

[Signature Page to Amendment No. 8 to Credit Agreement]

 

 

Exhibit A

to Amendment nO. 8

 

AMENDED CREDIT AGREEMENT

 

[See attached.]



Execution Version

 

Conformed through:

 

Amendment No. 1 to Credit Agreement and Waiver, dated as of July 1, 2020

Amendment No. 2 to Credit Agreement, dated as of October 12, 2020

Amendment No. 3 to Credit Agreement, dated as of March 26, 2021

Amendment No. 4 to Credit Agremeent, dated as of May 19, 2021

Amendment No. 5 to Credit Agreement, dated as of July 29, 2021

Amendment No. 6 to Credit Agreement, dated as of December 20, 2021

Amendment No. 7 to Credit Agreement, dated as of February 2, 2022

Amendment No. 8 to Credit Agreement, dated as of February 2, 2022 and effective as of the Eighth Amendment Effective Date 

 

 

 

CREDIT AGREEMENT

 

dated as of

 

May 4, 2020

 

among

 

BKRF OCB, LLC,
as Borrower,

 

BKRF OCP, LLC,
as Holdings,

 

THE LENDERS FROM TIME TO TIME PARTY HERETO,

 

and

 

Orion Energy Partners TP Agent, LLC,
as Administrative Agent and Collateral Agent

 

$300,000,000337,600,000 Senior Secured Term Loan Facility 

 

 

 

 

 

 

Table of Contents

 

 Page
  
Article I DEFINITIONS2
   
Section 1.01Certain Defined Terms2
Section 1.02Terms Generally3944
Section 1.03Accounting Terms4045
Section 1.04Divisions4045
   
Article II THE CREDITS4145
   
Section 2.01Loan4145
Section 2.02[Reserved]4247
Section 2.03Funding of the Loan4247
Section 2.04Termination and Reduction of the Commitments4347
Section 2.05Repayment of Loan; Evidence of Debt4347
Section 2.06Prepayment of the Loan4348
Section 2.07Fees4752
Section 2.08Interest4752
Section 2.09Increased Costs4853
Section 2.10[Reserved]4954
Section 2.11Taxes4954
Section 2.12Payments Generally; Pro Rata Treatment; Sharing of Setoffs5358
Section 2.13Change of Lending Office5560
Section 2.14Acknowledgement and Consent to Bail-In of EEA Financial Institutions5560
Section 2.15Tranche B Lender Joinder56
   
Article III REPRESENTATIONS AND WARRANTIES5661
   
Section 3.01Due Organization, Etc5661
Section 3.02Authorization, Etc5761
Section 3.03No Conflict5762
Section 3.04Approvals, Etc.5762
Section 3.05Financial Statements; No Material Adverse Effect5863
Section 3.06Litigation5863
Section 3.07Authorizations; Environmental Matters5964
Section 3.08Compliance with Laws and Obligations6064
Section 3.09Material Project Documents6065
Section 3.10Licenses6065
Section 3.11Taxes6065
Section 3.12Full Disclosure; Projections6166
Section 3.13Senior Obligations6166
Section 3.14Solvency6166
Section 3.15Regulatory Restrictions on the Loan6167

 

i

 

 

 

 

Table of Contents

(continued)

 

  Page
Section 3.16Title; Security Documents6167
Section 3.17ERISA6267
Section 3.18Insurance6267
Section 3.19Single-Purpose Entity6268
Section 3.20Use of Proceeds6368
Section 3.21Membership Interests and Related Matters6368
Section 3.22Permitted Indebtedness; Investments6369
Section 3.23Agreements with Affiliates6469
Section 3.24No Bank Accounts6469
Section 3.25No Default or Event of Default6469
Section 3.26Foreign Assets Control Regulations6469
Section 3.27Commercial Activity; Absence of Immunity6570
Section 3.28Sufficiency of Project Documents6570
Section 3.29Substantial Completion and Final Completion6571
   
Article IV CONDITIONS6671
   
Section 4.01Conditions to the Closing Date6671
Section 4.02Conditions to Tranche A Funding Date6976
Section 4.03Conditions to Each Funding Date7480
Section 4.04Conditions to Each Disbursement from the Construction Account7581
Section 4.05Conditions to Term Conversion7783
   
Article V AFFIRMATIVE COVENANTS8086
   
Section 5.01Corporate Existence; Etc8086
Section 5.02Conduct of Business8086
Section 5.03Compliance with Laws and Obligations8086
Section 5.04Governmental Authorizations8087
Section 5.05Maintenance of Title8187
Section 5.06Insurance8187
Section 5.07Keeping of Books8187
Section 5.08Access to Records8188
Section 5.09Payment of Taxes, Etc8288
Section 5.10Financial Statements; Other Reporting Requirements8288
Section 5.11Notices8490
Section 5.12Scheduled Calls and Meetings8592
Section 5.13Use of Proceeds8692
Section 5.14Security8693
Section 5.15Further Assurances8693
Section 5.16Security in Newly Acquired Property and Revenues8693
Section 5.17Material Project Documents8793

 

-ii

 

 

Table of Contents

(continued)

 

  Page
Section 5.18Collateral Accounts8794
Section 5.19Intellectual Property8794
Section 5.20Operating Budget and Financial Model8794
Section 5.21Collateral Account Report8895
Section 5.22Construction of the Project; Final Completion8895
Section 5.23Independent Engineer; Performance Test8896
Section 5.24Operation and Maintenance of Project8996
Section 5.25Certain Post-ClosingOther Obligations8997
Section 5.26Independent Engineer; Performance Testing 91[Reserved]99
Section 5.27As-Built Surveys; Title Endorsement92100
Section 5.28Qualified CEO and Qualified Officers92100
Section 5.29Accounts92100
Section 5.30Post-Third Amendment Covenants.99
Section 5.31Obligations Under the ARB EPC Agreement and ARB Parent Guarantee.100
Section 5.32Post-Fourth Amendment Covenants.100
   
Article VI NEGATIVE COVENANTS101110
   
Section 6.01Subsidiaries; Equity Issuances101110
Section 6.02Indebtedness101110
Section 6.03Liens, Etc.102112
Section 6.04Investments, Advances, Loans102112
Section 6.05Principal Place of Business; Business Activities102112
Section 6.06Restricted Payments103112
Section 6.07Fundamental Changes; Asset Dispositions and Acquisitions103113
Section 6.08Accounting Changes104115
Section 6.09Amendment or Termination of Material Project Documents; Other Restrictions on Material Project Documents104115
Section 6.10Transactions with Affiliates106116
Section 6.11Other Accounts106116
Section 6.12Guarantees106117
Section 6.13Hazardous Materials106117
Section 6.14No Speculative Transactions106117
Section 6.15Change of Auditors107117
Section 6.16Purchase of Capital Stock107117
Section 6.17Collateral Accounts107117
Section 6.18Performance Tests and Substantial Completion107117
Section 6.19Permitted Working Capital Facility and Commodity Hedging Documentation 107[Reserved]118
Section 6.20Qualified President108118
Section 6.21Post-Fourth Amendment Covenants108

  

-iii

 

 

Table of Contents

(continued)

 

  Page
Article VII EVENTS OF DEFAULT108119
   
Section 7.01Events of Default108119
   
Article VIII THE AGENTS112124
   
Section 8.01Appointment and Authorization of the Agents112124
Section 8.02Rights as a Lender113124
Section 8.03Duties of Agent; Exculpatory Provisions113125
Section 8.04Reliance by Agent114125
Section 8.05Delegation of Duties114125
Section 8.06Withholding of Taxes by the Administrative Agent; Indemnification114126
Section 8.07Resignation of Agent115126
Section 8.08Non-Reliance on Agent or Other Lenders115127
Section 8.09No Other Duties; Etc115127
Section 8.10Certain ERISA Matters115127
   
Article IX GUARANTY117128
   
Section 9.01Guaranty117128
Section 9.02Guaranty Unconditional117129
Section 9.03Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances118129
Section 9.04Waiver by the Guarantors118130
Section 9.05Subrogation119130
Section 9.06Acceleration119130
Section 9.07Limited Recourse Against Holdings119130
   
Article X MISCELLANEOUS119131
   
Section 10.01Notices119131
Section 10.02Waivers; Amendments120132
Section 10.03Expenses; Indemnity; Etc122134
Section 10.04Successors and Assigns124136
Section 10.05Survival128139
Section 10.06Counterparts; Integration; Effectiveness128140
Section 10.07Severability128140
Section 10.08Right of Setoff128140
Section 10.09Governing Law; Jurisdiction; Etc128140
Section 10.10Acknowledgment Regarding Any Supported QFCs130141
Section 10.11Headings131143
Section 10.12Confidentiality131143
Section 10.13Non-Recourse132144
Section 10.14No Third Party Beneficiaries132144
Section 10.15Reinstatement132144
Section 10.16USA PATRIOT Act133144
Section 10.17Electronic Execution of Assignments and Certain Other Documents133145
Section 10.18USURY145

 

-iv

 

 

Table of Contents

(continue)

 

Exhibit A-Form of Assignment and Assumption 
Exhibit B-Form of Note 
Exhibit C-Form of Borrowing Request 
Exhibit D-Form of Consent to Assignment 
Exhibit E-Form of Notice of Term Conversion 
Exhibit F-[Reserved] 
Exhibit G-[Reserved] 
Exhibit H-Form of Environmental, Social and Governance Report 
Exhibit I-[Reserved] 
Exhibit J-[Reserved] 
Exhibit K-Form of Security Agreement 
Exhibit L-HoldCo Borrower LLC Agreement 
Exhibit M-Form of Construction Requisition 
Exhibit N-Form of IE Requisition Certificate 
Exhibit O-1-Form of Borrower Completion Certificate 
Exhibit O-2-Form of Independent Engineer Completion Certificate 
Exhibit P-Form of Title Policy Endorsement 
Exhibit Q-Form of Mortgage 
Exhibit R-[Reserved] 
Exhibit S-[Reserved] 
Exhibit T-Form of Title Policy Endorsement 
Exhibit U-Form of Revenue Transfer Certificate 
Exhibit V-Form of Tranche B Lender Joinder 
Exhibit W-Form of Project Company Joinder 
Exhibit X-CTCI Transition PlanApproved Change Orders 
    
Annex I-Commitments 
Annex II-Prepayment Premium Calculations 
Annex III-Target Debt Balances 
Annex IV-Lending Offices 
    
Schedule 1.01(a)-Site 
Schedule 1.01(b)-Equity Shareholders 
Schedule 3.04-Approvals 
Schedule 3.06-Litigation 
Schedule 3.07-Environmental Matters 
Schedule 3.10-Licenses 
Schedule 3.11-Taxes 
Schedule 3.18-Insurance 
Schedule 3.21(a)-Subsidiaries 
Schedule 3.21(b)-Capital Stock Options 
Schedule 3.22(b)-Permitted Indebtedness 
Schedule 3.23-Transactions with Affiliates 
Schedule 4.01(f)-Significant Milestones 
Schedule 4.02(q)-COMA Employees 

 

-v

 

 

Table of Contents

(continued)

 

   

Page

    
Schedule 5.06-Insurance Requirements 
Schedule 5.25(a)-Feedstock Execution Plan 
Schedule 5.25(b)-Executive Hiring Plan 
Schedule 5.25(c)-Rail Development Milestones
Schedule 5.25(d)-Gas Supply Commercial Milestones
Schedule 5.25(e)-Environmental and Permitting Milestones

 

Bakersfield Refinery – Senior Credit Agreement

 

 

 

  

This CREDIT AGREEMENT (this “Agreement”) is dated as of May 4, 2020, among BKRF OCB, LLC, a Delaware limited liability company (“Borrower”), BKRF OCP, LLC, a Delaware limited liability company (“Holdings”), each Tranche A Lender (as defined herein) and Tranche B Lender (as defined herein) from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”) and Orion Energy Partners TP Agent, LLC, as the Administrative Agent (as defined herein) and the Collateral Agent (as defined herein).

 

WHEREAS, GCE Holdings Acquisitions, LLC, a Delaware limited liability company (“GCE Holdings”), entered into that certain Share Purchase Agreement, dated as of April 29, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “SPA”), with Alon Paramount Holdings, Inc., as seller (the “Seller”);

 

WHEREAS, GCE Holdings will assignhas assigned, and Borrower will assumehas assumed, the SPA pursuant to an assignment and assumption agreement, whereby Borrower will acquire all of the equity interests of Bakersfield Renewable Fuels, LLC, a Delaware limited liability company (the “Project Company”, and such acquisition, the “Acquisition”), as successor to (and formerly known as) Alon Bakersfield Property, Inc., a Delaware corporation;

 

WHEREAS, each of GCE Holdings and Borrower will assignhas assigned, and Project Company will assumehas assumed, all of the Initial Material Project Documents (as defined herein) on or prior to the Tranche A Funding Date (as defined herein) in connection with the Acquisition;

 

WHEREAS, following the consummation of the Acquisition, Borrower desires Project Company to install, develop, construct, finance and operate a 150 million gallons per year renewable diesel refinery to be located in Bakersfield, California (the “Project”);

 

WHEREAS, in order to finance a portion of the costs of the Acquisition and the development, construction, completion, ownership and operation of the Project and certain other costs, fees and expenses associated therewith and with the financing contemplated herein, as more fully described herein, Borrower has requested Lenders to extend, and Lenders have agreed to extend, on the terms and conditions set forth in this Agreement and the other Financing Documents, a credit facility to Borrower in an aggregate principal amount of $300,000,000337,600,000, as more fully described herein;

 

WHEREAS, the credit facility provided hereunder will be secured by the grant to the Collateral Agent, for the benefit of the Secured Parties, of a first priority Lien on the Collateral (subject to Permitted Liens); and

 

WHEREAS, the Lenders are willing to provide the credit facility described herein upon the terms and subject to the conditions set forth herein and in the other Financing Documents.

 

NOW, THEREFORE, the parties hereto agree as follows:

 

Bakersfield Refinery – Senior Credit Agreement

 

 

 

 

Article I

 

DEFINITIONS

 

Section 1.01      Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

 

ABL Intercreditor Agreement” means an intercreditor agreement to be entered into among the providers of Indebtedness under any Permitted Working Capital Facility, Borrower, Holdings, Project Company, the Administrative Agent and the Collateral Agent, which shall be in form and substance reasonably satisfactory to the Loan Parties and the Required Lenders.

 

Accrued Interest” means the payment-in-kind of interest in respect of the Loans by increasing the outstanding principal amount of the Loans.

 

Acquisition” has the meaning assigned to such term in the recitals.

 

Additional Cash Reserve Amount” means an amount equal to at least $35,000,000, which shall be provided as a voluntary cash equity contribution provided by one or more parent companies to the Loan Parties (or to the extent the Administrative Agent, in its sole discretion, consents to a form of subordination agreement, as a subordinated loan to the Borrower).

 

Additional Capital Raise” shall have the meaning assigned to such term in Section 5.30(a).

 

Additional Material Project Document” means any contract, or series of related contracts, entered into by Borrower or Project Company with respect to the Project that provides for the payment by Borrower or Project Company of, or the provision to Borrower or Project Company of, goods or services with a value in excess of $1,000,0005,000,000 annually or $15,000,000 in the aggregate over its term., but excluding (i) any contract, or series of related contracts, relating to any Indebtedness permitted by Section 6.02, (ii) any Senior Secured Swap Agreement, and (iii) any contract, or series of related contracts, which is required under emergency circumstances requiring immediate action to resume or maintain operation of the Project in accordance with Prudent Industry Practices or to avoid imminent threat to human life or property.

 

Administrative Agent” means Orion Energy Partners TP Agent, LLC, in its capacity as administrative agent for the Lenders hereunder, and any successor thereto pursuant to Article VIII.

 

Administrative Questionnaire” means a questionnaire, in a form supplied by the Administrative Agent, completed by a Lender.

 

Affected Property” means any property of Borrower or Project Company that suffers an Event of Loss.

 

Affiliate” means, with respect to a specified Person, another Person that at such time directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided that the Loan Parties and their Affiliates shall not be considered “Affiliates” of ExxonMobil.

 

 2

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Agents” means, collectively, the Administrative Agent and the Collateral Agent.

 

Agent Reimbursement Letter” means that certain amended and restated Agent Reimbursement Letter, dated as of the ClosingEighth Amendment Effective Date, among Borrower, the Administrative Agent and the Collateral Agent.

 

Agreement” has the meaning assigned to such term in the preamble.

 

Anti-Corruption Laws” means any law of any jurisdiction relating to corruption in which any Loan Party performs business, including the FCPA, the U.K. Bribery Act, and where applicable, legislation relating to corruption enacted by member states and signatories implementing the OECD Convention Combating Bribery of Foreign Officials.

 

Anti-Corruption Prohibited Activity” means the offering, payment, promise to pay, authorization or the payment of any money or the offer, promise to give, given, or authorized giving of anything of value, to any Government Official or to any person under the circumstances where the Person, such Person’s Affiliate’s or such Person’s representative knew or had reason to know that all or a portion of such money or thing of value would be offered, given or promised, directly or indirectly, to any Government Official, for the purpose of (a) influencing any act or decision of such Government Official in his or her official capacity, (b) inducing such Government Official to do or omit to do any act in relation to his or her lawful duty, (c) securing any improper advantage, or (d) inducing such Government Official to influence or affect any act or decision of any Governmental Authority, in each case, in order to assist such Person in obtaining or retaining business for or with, or in directing business to, any Person.

 

Anti-Money Laundering Laws” means the U.S. Currency and Foreign Transaction Reporting Act of 1970, as amended, and all money laundering-related laws of the United States and other jurisdictions where such Person conducts business or owns assets, and any related or similar law issued, administered or enforced by any government authority.

 

Applicable Law” means with respect to any Person, property or matter, any of the following applicable thereto: any constitution, writ, injunction, statute, law, regulation, ordinance, rule, judgment, rule of common law, order, decree, court decision, Authorization, approval, concession, grant, franchise, license, agreement, directive, guideline, policy, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing, by any Governmental Authority, whether in effect as of the date hereof or thereafter and in each case as amended including Environmental Laws.

 

ARB” means ARB, Inc., a California corporation.

 

ARB Credit Support” has the meaning assigned to such term in Section 6.21(b).

 

 3

Bakersfield Refinery – Senior Credit Agreement

 

 

 

ARB EPC Agreement” means that certain Cost Plus Fixed-Fee Turnkey Agreement with a Guaranteed Maximum Price for the Engineering, Procurement and Construction of the Bakersfield Renewable Fuels Project, dated as of April 30, 2020, by and between GCE Holdings and ARB, as required to be assigned pursuant to Section 4.02(r)(i) by GCE Holdings to, and assumed by, Project Company on the Tranche A Funding Dateand ARB.

 

ARB Parent Guarantee” means that certain Parent Guarantee, dated as of April 30, 2020, issued by Primoris Services Corporation, a Delaware corporation, in favor of GCE Holdings, as required to be assigned pursuant to Section 4.02(r)(i) by GCE Holdings to, and assumed by, Project Company on the Tranche A Funding Date.

 

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.04), in the form of Exhibit A or any other form approved by the Administrative Agent.

 

Authorization” means any consent, waiver, variance, registration, filing, declaration, agreement, notarization, certificate, license, tariff, approval, permit, orders, authorization, exception or exemption from, by or with any Governmental Authority, whether given by express action or deemed given by failure to act within any specified period, and all corporate, creditors’, shareholders’ and partners’ approvals or consents.

 

Authorized Representative” means, with respect to any Person, the chief executive officer, the chief financial officer or any other appointed officer of such Person as may be designated from time to time by such Person in writing. Any document or certificate delivered under the Financing Documents that is signed by an Authorized Representative may be conclusively presumed by the Administrative Agent and Lenders to have been authorized by all necessary corporate, limited liability company or other action on the part of the relevant Person.

 

Availability Period” means the period from the Closing Date to and including the earliest to occur of (a) the date that is twenty (20) months following the Closing Date, (b) the Term Conversion Date and (c) the Maturity Date.

 

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

 

Bankruptcy” means with respect to any Person (i) commencement by such Person of any case or other proceeding (x) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (y) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets; or (ii) commencement against such Person of any case or other proceeding of a nature referred to in clause (x) or (y) above which (a) results in the entry of an order for relief or any such adjudication or appointment or (b) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) commencement against such Person of any case or other proceeding seeking issuance of a warrant of attachment, execution or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) such Person shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) such Person shall admit in writing its inability to pay its debts as they become due or shall make a general assignment for the benefit of its creditors. 

 

 4

Bakersfield Refinery – Senior Credit Agreement

 

 

 

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

 

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

 

Board” means the Board of Governors of the Federal Reserve System of the United States of America.

 

Borrower” has the meaning assigned to such term in the preamble.

 

Borrowing Request” means a request by Borrower for a Loan in accordance with Section 2.01 and substantially in the form of Exhibit C.

 

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

 

CA Foreign Qualification” means, collectively, a Foreign Limited Liability Company Application for Registration and such other documents as are necessary for Project Company to be qualified to do business in the State of California.

 

CA Secretary of State” means the Secretary of State of the State of California.

 

Called Principal” means the aggregate principal amount of the Loans that are to be prepaid pursuant to Section 2.06(a), Section 2.06(b) (other than Section 2.06(b)(i), 2.06(b)(ii) and 2.06(b)(v)) or has become or is declared to be immediately due and payable pursuant to the last paragraph of Section 7.01, as the context requires (it being acknowledged that, for purposes of this definition, Loans will be repaid in each such Section on a “first-in, first-out” basis).

 

Capital Expenditures” means with respect to any Person, the aggregate of all expenditures and costs (whether paid in cash or accrued as liabilities and including that portion of payments under Capital Lease Obligations that are capitalized on the balance sheet of such Person) by such Person and its Subsidiaries which are required to be capitalized under GAAP on a balance sheet of such Person.

 

Capital Lease Obligations” means, with respect to any Person, the obligations of such Person to pay rent or any other amounts under any lease of (or other arrangements conveying the right to use) real or personal property, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person in accordance with GAAP.

 

 5

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Capital Stock” means, with respect to any Person, any and all shares, interests, participations and/or rights in or other equivalents (however designated, whether voting or nonvoting, ordinary or preferred) in the equity or capital of such Person, now or hereafter outstanding, and any and all rights, warrants or options exchangeable for or convertible into any of the foregoing.

 

Cash Equivalents” means:

 

(a)           direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States of America or any agency thereof, in each case with maturities not exceeding two years;

 

(b)           time deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company that is organized under the laws of the United States of America, or any state thereof having capital, surplus and undivided profits in excess of $250,000,000 and whose long-term debt, or whose parent holding company’s long-term debt, is rated A (or such similar equivalent rating or higher) by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act);

 

(c)           repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (a) above entered into with a bank meeting the qualifications described in clause (b) above;

 

(d)           commercial paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate of Borrower) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is made of P-1 (or higher) according to Moody’s or A-1 (or higher) according to S&P;

 

(e)           securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least A by S&P or A-2 by Moody’s;

 

(f)            shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the provisions of clauses (a) through (e) above;

 

(g)           taxable and tax-exempt auction rate securities rated AAA by S&P and Aaa by Moody’s and with a reset of less than 90 days;

 

(h)           money market funds that (i) comply with the criteria set forth in Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated A or higher by S&P and A-2 or higher by Moody’s and (iii) have portfolio assets of at least $500,000,000;

 

(i)            funds/cash uninvested in a trust or deposit account of the Depositary Bank; and

 

 6

Bakersfield Refinery – Senior Credit Agreement

 

 

 

(j)            cash.

 

“Cash Flow Utilization Cap” means an amount of Project Revenues (whether received before or after the Term Conversion Date) equal to $40,000,000; provided, that the Cash Flow Utilization Cap may be increased by an amount no greater than $10,000,000 (“Additional Cash Flow Utilization”) so long as (i) Borrower delivers notice to the Administrative Agent of its intent to increase the Cash Flow Utilization Cap by the Additional Cash Flow Utilization at least fifteen (15) Business Days prior to such increase and (ii) one or more parent companies of the Pledgor deposits an amount equal to the Additional Cash Flow Utilization in the Revenue Account within one-hundred and eighty (180) days of such increase as a cash equity contribution.

 

Cash Reserve Account” means a deposit, subject to any Permitted Account Transfer, an account in the name of Borrower (or such other Person as may be approved in the sole discretion of the Administrative Agent)Project Company and established on or after the Third Amendment Effective Date, but in any case prior to September 15, 2021, with a Depositary Bank that is designated by Borrower to be the “Cash Reserve Account”; provided, that such account shall at all times be subject to a priority Lien in favor of the Collateral Agent and subject to a Control Agreement.

 

Castleton Commodities” means Castleton Commodities Merchant Trading L.P., a Delaware limited partnership.

 

CCI Hedging Amendment” has the meaning given to such term in the definition of CCI Hedging Documentation.

 

CCI Hedging Documentation” means, collectively, (a) that certain ISDA Master Agreement, dated as of October 15, 2018, by and between GCE Holdings and Castleton Commodities, (b) that certain Schedule to the ISDA Master Agreement, dated as of October 15, 2018, by and between GCE Holdings and Castleton Commodities, (c) that certain Credit Support Annex to the Schedule to the ISDA Master Agreement, dated as of October 15, 2018, by and between GCE Holdings and Castleton Commodities, (d) that certain Transaction Confirmation, dated as of October 16, 2018, by and between GCE Holdings and Castleton Commodities, (ed) that certain Transaction Confirmation, dated as of October 29, 2019, by and between GCE Holdings and Castleton Commodities and (f) the, (e) that certain Revised Confirmation, dated as of February 25, 2020, by and between GCE Holdings and Castleton Commodities, (f) that certain Transaction Confirmation, dated as of March 23, 2020, by and between GCE Holdings and Castleton Commodities and (g) that certain Revised Confirmation, dated as of April 28, 2020 (the “CCI Hedging Amendment”), by and between GCE Holdings and Castleton Commodities.

 

Change in Law” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof (including any change in the reserve percentage under, or other change in, Regulation D) by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 2.09(b), by any Lending Office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement. Notwithstanding anything herein to the contrary, (x) the Dodd Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

 7

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Change of Control” means:

 

(a)           Sponsor shall cease to own, directly or indirectly, beneficially or of record, Capital Stock representing 100% in the aggregate of the economic and voting interests in Holdings (other than (i) the Capital Stock in one or more parent companies of Holdings owned by the Equity Shareholders, (ii) without duplication of the foregoing, the Class B Units and the Class C Units (as defined in the HoldCo Borrower LLC Agreement) in the HoldCo Borrower (which, as of the Tranche A Funding Date, will be held by the Lender Equity Owners and the HoldCo Lender Equity Owners, respectively) and (iii) the Capital Stock in HoldCo Pledgor Disposed directly or indirectly by Sponsor to one or more non-Affiliated Persons, so long as, in the case of this clause (iii), the Net Available Amount of any Disposition thereof are contributed to the Loan Parties and so long as Sponsor maintains Capital Stock representing 50.1% in the aggregate of the economic and voting interests in Holdings);

 

(b)           Holdings shall cease to beneficially and directly own 100% (on a fully diluted basis) of the aggregate voting and economic interests in the Capital Stock of Borrower; or

 

(c)           On the Tranche A Funding Date (after the consummation of the Acquisition) and thereafter, Borrower shall cease to beneficially and directly own 100% (on a fully diluted basis) of the aggregate voting and economic interests in the Capital Stock of Project Company.

 

Change Order” has the meaning assigned to such term in Section 6.09(b).

 

Class B Units” has the meaning assigned to such term in the HoldCo Borrower LLC Agreement.

 

Closing Date” means the date on or following the date of execution of this Agreement on which all conditions precedent specified in Section 4.01 are satisfied (or waived by the Administrative Agent and the Lenders in their sole discretion in accordance with Section 10.02).May 4, 2020.

 

Code” means the U.S. Internal Revenue Code of 1986, as amended.

 

Collateral” means (i) all Property of Borrower, (ii) all Property of Project Company, (iii) the Capital Stock of Borrower owned by Holdings and (iv) the Capital Stock of Project Company owned by Borrower, in each case, now owned or hereafter acquired, and which is intended to be subject to the security interests or Liens granted pursuant to any of the Security Documents.

 

 8

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Collateral Accounts” means (i) the Revenue Account, (ii) the Operating Account, (iii) the Construction Account, (iv) the Debt Service Reserve Account, (v) the Liquidity and Capex Project Account, (vi) the Distribution Suspense Account and, (vii) the Extraordinary Receipts Account, (viii) the Major Maintenance Reserve Account and (ix) the Cash Reserve Account.

 

Collateral Agent” means Orion Energy Partners TP Agent, LLC, in its capacity as collateral agent for the Secured Parties under the Security Documents, and any successor thereto pursuant Article VIII.

 

COMA” means that certain Amended and Restated Control, Operations and Maintenance Agreement, dated as of the ClosingEighth Amendment Effective Date, between BorrowerProject Company and GCE Operating, as required to be assigned pursuant to Section 4.02(r)(i) by Borrower to, and assumed by, Project Company, on the Tranche A Funding Date.

 

Commitment” means, with respect to each Lender at any time, the Tranche A Commitments or the Tranche B Commitments, individually or collectively, as the context may require.

 

Commodity Hedging Documentation” means the definitive documentation to be entered into between the applicable Loan Party and the applicable commodity hedging counterparties under and in accordance with the Commodity Hedging Program.

 

Commodity Hedging Manager” means a Person selected by Borrower and approved by the Administrative Agent, acting in its sole discretion, to develop the Commodity Hedging Program and, following the Commodity Hedging Program Date, implement the Commodity Hedging Program.

 

Commodity Hedging Program” means a commodity hedging program related to the Project and developed by the Commodity Hedging Manager, which program, and any modifications thereto, must be approved by the Administrative Agent (i) with respect to the approval of the program and any material modifications thereto, in its sole discretion and (ii) with respect to the approval of any immaterial modifications thereto, such approval not to be unreasonably withheld, conditioned or delayed.

 

Commodity Hedging Program Date” means the date on which the Administrative Agent shall have approved the Commodity Hedging Program, acting in its sole discretion.

 

Completion Date” means the date that Substantial Completion is achieved, as certified by an Authorized Representative of Borrower and confirmed by the Independent Engineer pursuant to Section 4.05(b).

 

Condemnation” means any taking, seizure, confiscation, requisition, exercise of rights of eminent domain, public improvement, inverse condemnation, condemnation, expropriation, nationalization or similar action of or proceeding by any Governmental Authority affecting the Project.

 

 9

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Consent to Assignment” means each Consent to Assignment contemplated hereby to be executed by a Material Project Counterparty substantially in the form of Exhibit D (with such changes as the Administrative Agent may reasonably agree).

 

Construction Account” means, subject to any Permitted Account Transfer, an account in the name of Borrower or Project Company and established with a Depositary Bank that is designated by Borrower to be the “Construction Account”.

 

Construction Budget” means a budget setting forth all expected Project Costs through Final Completion delivered to the Lenders on the Closingor before the Eighth Amendment Effective Date pursuant to Section 4.014(fi) of this Agreementthe Eighth Amendment.

 

Construction Requisition” means a certificate, signed by an Authorized Representative of Borrower, substantially in the form of Exhibit M.

 

Construction Schedule” means a schedule setting forth the expected schedule and milestones for construction of the Project through Final Completion delivered to the Lenders on the Closingor before the Eighth Amendment Effective Date pursuant to Section 4.014(fi) of this Agreementthe Eighth Amendment.

 

Consultant” has the meaning assigned to such term in Section 10.03(a)(ii).

 

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

 

Control Agreement” means a blocked account control agreement in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent which provides for Collateral Agent to have “control” (as defined in Section 8-106 of the UCC, as such term relates to investment property (other than certificated securities or commodity contracts), or as used in Section 9-106 of the UCC, as such term relates to commodity contracts, or as used in Section 9-104(a) of the UCC, as such term relates to deposit accounts).

 

CTCI” means CTCI Americas, Inc., a Texas corporation.

 

CTCI EPC Agreement” means that certain Cost Plus Fixed-Fee Turnkey Agreement with a Guaranteed Maximum Price for the Engineering, Procurement and Construction of the Bakersfield Renewable Fuels Project, dated as of May 1918, 2021, by and between the Project Company and CTCI.

 

CTCI Parent Guarantee” means that certain Parent Guarantee, dated as of May 1918, 2021, issued by CTCI Corporation, a corporation duly organized and existing under the laws of Taiwan, in favor of the Project Company.

 

“Date Certain” means August 31, 2022; provided, that the Date Certain shall be extended on a day-for-day basis (up to a maximum extension of 90 days) for each day that the “Start Date” under and as defined in the ExxonMobil Offtake Agreement is extended pursuant to an amendment to the ExxonMobil Offtake Agreement consented to by ExxonMobil.

 

 10

Bakersfield Refinery – Senior Credit Agreement

 

 

 

CTCI Transition Plan” means the transition plan as set forth in Exhibit X hereto.

 

Date Certain” means March 31, 2022.

 

Debt Payment Deficiency” has the meaning assigned to such term in Section 5.29(e)(ii)(A).

 

Debt Prepayment Offer” has the meaning assigned to such term in Section 2.06(b)(iv).

 

Debt Service Reserve Account” means, subject to any Permitted Account Transfer, an account in the name of Borrower or Project Company and established with a Depositary Bank that is designated by Borrower to be the “Debt Service Reserve Account”.

 

Debt Service Reserve Funding Amount” means, in respect of Loans funded on each Funding Date, interest that is payable on such Loans in accordance with Section 2.08 for the period between such Funding Date and January 31, 2022 (excluding any interest that may be paid in kind (in lieu of payment in cash) in accordance with Section 2.08(c)).

 

Default” means any event, condition or circumstance that, with notice or lapse of time or both, would (unless cured or waived) become an Event of Default.

 

Depositary Bank” means an account bank at which Borrower maintains any Collateral Account.

 

Disbursement Date” has the meaning assigned to such term in Section 4.04.

 

Disposition” has the meaning assigned to such term in Section 2.06(b)(iii).

 

Disposition Proceeds Prepayment Offer” has the meaning assigned to such term in Section 2.06(b)(iii).

 

Distribution Suspense Account” means, subject to any Permitted Account Transfer, an account in the name of Borrower or Project Company and established with a Depositary Bank that is designated by Borrower to be the “Distribution Suspense Account”.

 

“Distribution Transfer Condition” means the outstanding loans under any Permitted Working Capital Facility are, in the aggregate, less than the fair market value (as determined by Borrower to its knowledge in accordance with GAAP) of the accounts receivable and inventory of the Loan Parties then outstanding and any other collateral that is subject to a first lien securing obligations under such Permitted Working Capital Facility.

 

Dollars” or “$” refers to the lawful currency of the United States of America.

 

ECF Prepayment Offer” has the meaning assigned to such term in Section 2.06(b)(v).

 

 11

Bakersfield Refinery – Senior Credit Agreement

 

 

 

ECF Sweep Amount” means, for any applicable Quarterly Date, (i) if the amount of Net Cash Flow as of such Quarterly Date is at least equal to the ECF Target Amount as of such Quarterly Date, such ECF Target Amount or (ii) if the amount of Net Cash Flow as of such Quarterly Date is less than the ECF Target Amount as of such Quarterly Date, such amount of Net Cash Flow.

 

ECF Target Amount” means, for any applicable Quarterly Date, the amount of Net Cash Flow that will cause the remaining outstanding principal amount of the Loans, after giving effect to the application of such amount as a prepayment, to be equal to the Target Debt Balance applicable to such Quarterly Date at such time.

 

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 clause (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.

 

“Eighth Amendment” means that certain Amendment No. 8 to Credit Agreement, effective as of the Eighth Amendment Effective Date, by and among the Borrower, Holdings, the Project Company, the Administrative Agent and the Lenders.

 

“Eighth Amendment Contribution” has the meaning assigned to such term in Section 5.29(a)(i).

 

“Eighth Amendment Effective Date” means the date on which each of the conditions set forth in Section 4 of the Eighth Amendment has been met.

 

Environment” means soil, surface water and groundwater (including potable water, groundwater and wetlands), the land, surface or subsurface strata or sediment, indoor and ambient air, and natural resources such as flora and fauna or otherwise defined in any Environmental Law.

 

Environmental Claim” means any administrative or judicial action, suit, proceeding, notice, claim or demand by any Person seeking to enforce any obligation or responsibility arising under or relating to Environmental Law or alleging or asserting liability for investigatory costs, cleanup or other remedial costs, legal costs, environmental consulting costs, governmental response costs, damages to natural resources or other property, personal injuries, fines or penalties related to (a) the presence, or Release into the Environment, of any Hazardous Material at any location, whether or not owned by the Person against whom such claim is made, or (b) any violation of, or alleged violation of, or liability arising under any Environmental Law. The term “Environmental Claim” shall include, without limitation any claim by any Person for damages, contribution, indemnification, cost recovery, compensation or injunctive relief or costs associated with any remediation plan, in each case, under any Environmental Law.

 

 12

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Environmental Consultant” means WZI, Inc. or another similarly qualified consultant approved by the Administrative Agent in its sole discretion.

 

Environmental Laws” means any Applicable Laws regulating or imposing liability or standards of conduct concerning or relating to pollution or the protection of human health and safety, the environment, natural resources or special status species and their habitat, including all Applicable Laws concerning the presence, use, manufacture, generation, transportation, Release, threatened Release, disposal, arrangement for disposal, dumping, discharge, treatment, storage or handling of Hazardous Materials.

 

Environmental and Permitting Milestones” means the environmental and permitting milestones set forth on Schedule 5.26(e).

 

EPC Agreements” means the CTCI EPC Agreement, the Gas Pipeline EPC Agreement, the Haldor Engineering Agreement and the H&H EPC Agreement.

 

EPC Contractors” means each Material Project Counterparty party to an EPC Agreement.

 

EPC Subcontract” means each of the Technip Subcontract and OnQuest Subcontract.

 

Equity Contributions” shall mean contributions of capital in the form of equity, which the Sponsor provides pursuant to an equity contribution agreement or otherwise, directly or indirectly, to the Borrower.

 

Equity Contribution Requirement” has the meaning assigned to such term in Section 5.25(n).

 

Equity Kickerhas the meaning assigned to such term in Section 4.02(u)means the issuance of Class B Units to a Lender or each Affiliated Lender Equity Owner thereof on the terms set forth in the HoldCo Borrower LLC Agreement.

 

Equity Shareholders” means the ultimate shareholders and/or other equity owners of Holdings as of the Closing Date, as set forth on Schedule 1.01(b).

 

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 Borrower, is treated as a single employer under Sections 414(b), (c), (m) or (o) of the Code.

 

 13

Bakersfield Refinery – Senior Credit Agreement

 

 

 

ERISA Event” means (a) a Reportable Event with respect to any Pension Plan, (b) the failure by any Pension Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such plan, whether or not waived, (c) the filing of a notice of intent to terminate a Pension Plan in a distress termination (as described in Section 4041(c) of ERISA), (d) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization or insolvent (within the meaning of Title IV of ERISA), (e) the imposition or incurrence of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate, (f) the institution by the PBGC of proceedings to terminate a Pension Plan or Multiemployer Plan, (g) the appointment of a trustee to administer any Pension Plan under Section 4042 of ERISA, or (h) the imposition of a Lien upon Borrower pursuant to Section 430(k) of the Code or Section 303(k) of ERISA.

 

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

 

Event of Abandonment” means (a) the abandonment by Project Company of all or a material portion of the Site or its activities to operate or maintain the Project, which abandonment shall be deemed to have occurred if Borrower or Project Company fails to operate the Project for a period of thirty (30) or more consecutive days; provided that any suspension or delay in development, construction, completion or operation of the Project caused by a force majeure event or a forced or scheduled outage of the Project shall not constitute an “Event of Abandonment” for a period of up to one hundred eighty (180) days, so long as, to the extent feasible during such force majeure event or outage, Borrower is diligently attempting to restart the development, construction, operation or completion, as the case may be, of the Project during such period; or (b) the written announcement by Borrower or, after the Tranche A Funding Date, Project Company of its intention to do any of the foregoing in clause(a).

 

Event of Default” has the meaning assigned to such term in Section 7.01.

 

Event of Loss” means any loss of, destruction of or damage to, or any Condemnation or other taking of any property of Borrower.

 

Event of Loss Prepayment Offer” has the meaning assigned to such term in Section 2.06(b)(ii).

 

Excluded Property” has the meaning assigned to such term in the Security Agreement.

 

 14

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Excluded Taxes” means, with respect to any Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder, (a) Taxes imposed on or measured by net income and franchise Taxes (imposed in lieu of net income tax), in each case, imposed by the jurisdiction under the laws of which such recipient is organized, in which its principal office (or other fixed place of business) is located or, in the case of any Lender in which its applicable Lending Office is located or in which such recipient has a present or former connection (other than a connection arising from such recipient having executed, delivered, become a party to, this Agreement, or received payments, received or perfected a security interest under or performed its obligations under any Financing Document, engaged in any other transaction pursuant to or enforced any Financing Document or sold or assigned an interest in any Loan or any Financing Document), (b) any branch profits Taxes imposed by the jurisdictions listed in clause (a) of this definition, (c) any Taxes imposed as a result of the failure of any Agent, any Lender or any such other recipient to comply with Section 2.11(e)(i), (d) in the case of an Agent or a Lender (other than an assignee pursuant to a request by Borrower under Section 2.13), any United States federal withholding Tax that is imposed on amounts payable to such Agent or Lender under the laws effective at the time such Agent or Lender becomes a party hereto (or designates a new Lending Office), except to the extent that such Agent or Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from Borrower with respect to such withholding Tax pursuant to Section 2.11(a), and (e) any United States federal withholding Taxes imposed under FATCA.

 

Executive Hiring Plan” means the executive hiring plan set forth on Schedule 5.26(b).

 

Extraordinary MPD Proceeds” has the meaning assigned to such term in Section 2.06(b)(i).

 

Extraordinary Receipts” has the meaning assigned to such term in Section 5.29(f)(i)(A).

 

Extraordinary Receipts Account” means, subject to any Permitted Account Transfer, an account in the name of Borrower or Project Company and established with a Depositary Bank that is designated by Borrower to be the “Extraordinary Receipts Account”.

 

ExxonMobil” means ExxonMobil Oil Corporation, a New York corporation.

 

ExxonMobil Offtake Agreement” means that certain Product Offtake Agreement, dated as of April 10, 2019, by and between GCE Holdings and ExxonMobil, as amended by that certain Amendment and Waiver Letter Agreement, dated as of March 31, 2020, by and between GCE Holdings and Exxon MobileExxonMobil and as assigned by GCE Holdings to, and as assumed by, Project Company on the Tranche A Funding Date.

 

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.

 

FCPA” means the United States Foreign Corrupt Practices Act of 1977, as amended.

 

Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

 

 15

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Feedstock Execution Plan” means the plan focused on feedstock supply, detailed on Schedule 5.265.25(a).

 

Fifth Amendment” means that certain Amendment No. 5 to Credit Agreement, dated as of July 29, 2021, by and among the Borrower, Holdings, the Project Company, the Administrative Agent and the Required Lenders.

 

Fifth Amendment Effective Date” has the meaning assigned to such term in the Fifth Amendment.

 

“Fifth Waiver” means that certain Waiver No. 5 to Credit Agreement, dated as of February 2, 2022, by and among the Borrower, Holdings, the Project Company, the Administrative Agent and the Lenders.

 

Final Completion” means the satisfaction of each of the following conditions:

 

(a)           Substantial Completion shall have been achieved;

 

(a)          all Punch List items shall have been completed;

 

(b)          Administrative Agent and the Lenders shall have received duly executed acknowledgments of payments and final releases of mechanics’ and materialmen’s liens, in the form attached to the applicable Material Construction Contract or otherwise in form and substance reasonably acceptable to the Title Company, from each Material Project Counterparty party to such Material Construction Contract;

 

(c)           the Project has produced at least 19,392,96114,301,370 total gallons of Renewable Diesel over a period of sixty (60) consecutive days (as verified in writing by the Independent Engineer to Agent and the Lenders pursuant to Section 5.275.23(b));

 

(d)           the achievement of “Final Completion” (howsoever defined) under each of the EPC Agreements (other than the Haldor Engineering Agreement); and

 

(e)           Borrower shall have delivered to Administrative Agent and the Lenders a certificate of an Authorized Representative of Borrower certifying the satisfaction of each of the above conditions.

 

Final Completion Date” means date on which Final Completion has been achieved.

 

Financial Model” means the projections of the Loan Parties’ operating results (on a quarterly basis over a period ending on the Maturity Date) delivered to the Lenders on or prior to the ClosingEighth Amendment Effective Date pursuant to Section 4.014(fi) of the Eighth Amendment.

 

 16

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Financial Staffing Plan” shall have the meaning assigned to such term in Section 5.30(b)(i)(A).

 

Financing Documents” means this Agreement, each Note (if requested by a Lender), the Agent Reimbursement Letter, the Security Documents, the HoldCo Lender Backstop Agreement and each certificate, agreement, instrument, waiver, consent or document executed by a Loan Party, identified by its terms as a “Financing Document” and delivered by or on behalf of a Loan Party to Agent or any Lender in connection with or pursuant to any of the foregoing.

 

Flood Certificate” means a “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency and any successor Governmental Authority performing a similar function.

 

Flood Program” means the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004.

 

Flood Zone” means areas having special flood hazards as described in the National Flood Insurance Act of 1968.

 

Foreign Plan” means any employee pension benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Loan Party or with respect to which any Loan Party could reasonably be expected to have any liability, in each case with respect to employees employed outside the United States (as such term is defined in Section 3(10) of ERISA) (other than any arrangement with the applicable Governmental Authority).

 

Fourth Amendment” means that certain Amendment No. 4 to Credit Agreement, dated as of May 19, 2021, by and among the Borrower, Holdings, the Project Company, the Administrative Agent and the Required Lenders.

 

Fourth Amendment Effective Date” means May 19, 2021.

 

Funding Date” has the meaning assigned to such term in Section 2.01(d).

 

Funding Office” means the office specified from time to time by the Administrative Agent as its funding office by notice to Borrower and the Lenders.

 

Funds Flow Memorandum” means the memorandum, in form and substance satisfactory to the Administrative Agent detailing the proposed flow, and use, of the Loan proceeds on the Closing Date or the Tranche A Funding Date, as applicable.

 

GAAP” means generally accepted accounting principles in effect from time to time in the United States of America, applied on a consistent basis.

 

Gas Pipeline EPC Agreement” means that certain Engineering, Procurement and Construction Services Agreement, dated as of April 30, 2020, by and between GCE Holdings and Underground, as required to be assigned pursuant to Section 4.02(r)(i) by GCE Holdings to, and as assumed by, Project Company on the Tranche A Funding Dateand Underground.

 

 17

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Gas Supply Commercial Milestones” means the gas supply commercial milestones set forth on Schedule 5.26(d).

 

GCE Holdings” has the meaning assigned to such term in the recitals.

 

GCE Operating” means GCE Operating Company, LLC, a Delaware limited liability company.

 

Government Official” means an official of a Governmental Authority.

 

Governmental Authority” means any federal, regional, state or local government, or political subdivision thereof or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government and having jurisdiction over the Person or matters in question, including all agencies and instrumentalities of such governments and political subdivisions.

 

Governmental Rule” means, with respect to any Person, any law, rule, regulation, ordinance, order, code, treaty, judgment, decree, directive, guideline, policy or similar form of decision of any Governmental Authority binding on such Person.

 

Guarantee” means as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit), if to induce the creation of such obligation of such other Person, the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (w) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (x) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (y) to purchase Property, securities or services, in each case, 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 (z) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided that the term Guarantee shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee of any guaranteeing person shall be deemed to be the lower of (A) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (B) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by Borrower in good faith.

 

 18

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Guaranteed Obligations” means, with respect to Holdings or Project Company, the Obligations whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any debtor relief law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

Guarantors” has the meaning assigned to such term in Section 9.01(a).

 

H&H EPC Agreement” means that certain Lump Sum Engineering, Procurement and Construction Contract, dated as of April 30, 2020, by and between GCE HoldingsProject Company and H&H Engineering Construction, Inc., a California corporation, as required to be assigned pursuant to Section 4.02(r)(i) by GCE Holdings to, and as assumed by, Project Company on the Tranche A Funding Date.

 

Haldor Catalyst Supply Agreement” means that certain Catalyst Supply Agreement, dated as of April 30, 2020, by and between GCE HoldingsProject Company and Haldor Topsoe, Inc., a Texas corporation, as required to be assigned pursuant to Section 4.02(r)(i) by GCE Holdings to, and as assumed by, Project Company on the Tranche A Funding Date.

 

Haldor Engineering Agreement” means that certain Engineering Agreement, dated as of October 24, 2018, by and between GCE HoldingsProject Company and Haldor Topsoe, Inc., a Texas corporation, as amended by that certain Amendment No. 1 to Engineering Agreement, dated as of June 28, 2019 and the Amendment and Consent to Assignment, dated as of May 1, 2020, by and between GCE HoldingsProject Company and Haldor Topsoe, Inc. and as required to be assigned pursuant to Section 4.02(r)(i) by GCE Holdings to, and as assumed by, Project Company on the Tranche A Funding Date.

 

Haldor Guarantee Agreement” means that certain Guarantee Agreement, dated as of October 24, 2018, by and between GCE HoldingsProject Company and Haldor Topsøe A/S, a company organized and existing under the laws of Denmark, as required to be assigned pursuant to Section 4.02(r)(i) by GCE Holdings to, and as assumed by, Project Company on the Tranche A Funding Date.

 

Haldor License Agreement” means that certain License Agreement, dated as of October 24, 2018, as amended by that certain Amendment and Consent to Assignment, dated as of May 1, 2020, by and between GCE HoldingsProject Company and Haldor Topsøe A/S, a company organized and existing under the laws of Denmark, as required to be assigned pursuant to Section 4.02(r)(i) by GCE Holdings to, and as assumed by, Project Company on the Tranche A Funding Date.

 

Haldor Purchase Agreement” means that certain Purchase Order No. 20200504-002, dated as of May 1, 2020, by and between GCE HoldingsProject Company and Haldor Topsoe, Inc., a Texas corporation, as required to be assigned pursuant to Section 4.02(r)(i) by GCE Holdings to, and as assumed by, Project Company on the Tranche A Funding Date.

 

 19

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Hazardous Material” means, but is not limited to, any solid, liquid, gas, odor, radiation or other substance or emission which is a contaminant, pollutant, dangerous substance, toxic substance, regulated substance, hazardous waste, subject waste, hazardous material or hazardous substance which is or becomes regulated by applicable Environmental Laws or which is classified as hazardous or toxic under applicable Environmental Laws (including gasoline, diesel fuel or other petroleum hydrocarbons, polychlorinated biphenyls, asbestos and urea formaldehyde foam insulation) or with respect to which liability or standards of conduct are imposed under any Environmental Laws.

 

HoldCo Administrative Agent” has the meaning assigned to the term “Administrative Agent” under the HoldCo Credit Agreement.

 

HoldCo Borrower” means BKRF HCB, LLC, a Delaware limited liability company.

 

HoldCo Borrower LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement of BKRF HCB, LLC, to be entered into on the Closing Date, among HoldCo Borrower and Holdco Pledgor, as of the Closingamended on the Eighth Amendment Effective Date, substantially in the form of Exhibit L.

 

HoldCo Collateral Agent” has the meaning assigned to the term “Collateral Agent” under the HoldCo Credit Agreement.

 

HoldCo Credit Agreement” means that certain HoldCo Credit Agreement, dated as of May 4, 2020, among HoldCo Borrower, HoldCo Pledgor, the HoldCo Lenders from time to time party thereto, the HoldCo Administrative Agent and the HoldCo Collateral Agent.

 

HoldCo Lender Backstop Agreement” means that certain HoldCo Lender Backstop Agreement, dated as of the date hereof, among Borrower, HoldCo Borrower, the HoldCo Lenders, the Administrative Agent and the Collateral Agent.

 

HoldCo Lenders” has the meaning assigned to the term “Lenders” under the HoldCo Credit Agreement.

 

HoldCo Lender Equity Owners” has the meaning assigned to the term “HoldCo Lender Equity Owners” under the HoldCo Credit Agreement.

 

HoldCo Pledgor” has the meaning assigned to the term “Pledgor” under the HoldCo Credit Agreement.

 

Holdings” has the meaning assigned to such term in the preamble.

 

IE Requisition Certificate” means a certificate delivered by the Independent Engineer substantially in the form of Exhibit N.

 

 20

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Indebtedness” of any Person means, without duplication, all (a) indebtedness for borrowed money and every reimbursement obligation with respect to letters of credit, bankers’ acceptances or similar facilities, (b) obligations evidenced by bonds, debentures, notes or other similar instruments, (c) obligations to pay the deferred purchase price of property or services, except accounts payable and accrued expenses arising in the ordinary course of business and payable within ninety (90) days past the original invoice or billing date thereof, (d) liabilities under interest rate or currency swap agreements, interest rate or currency collar agreements and all other agreements or arrangements designed to protect against fluctuations in interest rates and currency exchange rates, (e) the capitalized amount (determined in accordance with GAAP) of all payments due or to become due under all leases and agreements to enter into leases required to be classified and accounted for as a capital lease in accordance with GAAP, (f) reimbursement obligations (contingent or otherwise) pursuant to any performance bonds or collateral security, (g) Indebtedness of others described in clauses (a) through (f) above secured by (or for which the holder thereof has an existing right, contingent or otherwise, to be secured by) a Lien on the property of such Person, whether or not the respective Indebtedness so secured has been assumed by such Person and (h) Indebtedness of others described in clauses (a) through (g) above guaranteed by such Person. The Indebtedness of any Person shall include the Indebtedness of 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 general partner interest in such partnership, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

 

Indemnified Party” has the meaning assigned to such term in Section 10.03(b).

 

Indemnified Taxes” means Taxes imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under this Agreement or any Financing Document other than Excluded Taxes and Other Taxes.

 

Independent Auditor” means any “big four” accounting firm or Grant Thornton LLP, in any case, as selected by Borrower and notified to the Administrative Agent, or such other firm of independent public accountants of recognized national standing in the United States selected by Borrower and acceptable to the Administrative Agent, acting reasonably.

 

Independent Engineer” means Spearman Energy Consulting, LLC or such other independent engineer of recognized national standing in the United States selected by Borrower and acceptable to the Administrative Agent, acting reasonably.

 

Industrial Track Agreement” means that certain Industry Track Agreement, dated as of June 7, 2011, between BNSF Railway Company, a Delaware corporation, and Seller, as assigned by Seller to, and as assumed by, Project Company on or before the Tranche A Funding Date.

 

Initial Material Project Documents” means:

 

(a)           the Material Construction Contracts;

 

(b)           the CTCI Parent Guarantee;

 

(c)           the ExxonMobil Offtake Agreement;

 

(d)           the SusOils License Agreement;

 

(e)           the Industrial Track Agreement;

 

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Bakersfield Refinery – Senior Credit Agreement

 

 

 

(f)            the Mojave Spur Pipeline Ownership Agreement;

 

(g)           the Mojave Spur Pipeline Operating Agreement; and

 

(h)           the COMA;.

 

provided that (i) notwithstanding anything to the contrary herein or in any other Financing Document, the Pre-Acquisition Material Project Documents shall be “Material Project Documents” only following the Acquisition on the Tranche A Funding Date and (ii) notwithstanding anything to the contrary herein or in any other Financing Document (including the delivery obligation under Section 4.01(d)), no agreement shall be an “Initial Material Project Document” until the Tranche A Funding Date.

 

Insurance Advisor” means Willis Towers Watson, or another nationally recognized insurance advisor selected by the Administrative Agent with the approval of the Administrative Agent, acting reasonably, and, so long as no Event of Default has occurred and is continuing, Borrower, acting reasonably.

 

Intended Tax Treatment” has the meaning assigned to such term in Section 2.01(f).

 

Intercreditor Agreements” means the ABL Intercreditor Agreement and the Term Intercreditor Agreement.

 

Interest Rate” means at any time, a rate per annum equal to 12.50%.

 

Investment” means for any Person (a) the acquisition (whether for cash, Property of such Person, services or securities or otherwise) of Capital Stock, bonds, notes, debentures, debt securities, partnership or other ownership interests or other securities of, or any Property constituting an ongoing business, line of business, division or business unit of or constituting all or substantially all the assets of, or the making of any capital contribution to, any other Person, (b) the making of any advance, loan or other extension of credit to, any other Person (including the purchase of Property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such Property to such Person, but excluding any such advance, loan or extension of credit having a term not exceeding ninety (90) days representing the purchase price of inventory or supplies sold in the ordinary course of business), (c) the entering into of any Guarantee with respect to Indebtedness or other liability of any other Person, and (d) any other investment that would be classified as such on a balance sheet of such Person in accordance with GAAP.

 

Legal Requirements” means, as to any Person, any requirement under any Authorization by any Governmental Authority or under any Governmental Rule, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

 

Lender Equity Owners” means each of the Lenders (or their designees) listed on Annex I.

 

Lenders” has the meaning assigned to such term in the recitals.

 

 22

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Lender Target Project Capacity” means, with respect to the Project for any measurement period, the production of at least 373,358 gallons per day of Renewable Diesel on average over such measurement period.

 

Lending Office” means the office designated as such beneath the name of a Lender set forth on Annex IV of this Agreement or such other office of such Lender as such Lender may specify in writing from time to time to the Administrative Agent and the Borrower.

 

Lien” means any mortgage, charge, pledge, lien (statutory or other), privilege, security interest, hypothecation, collateral assignment or preference, priority or other security agreement, mandatory deposit arrangement, preferential arrangement or other encumbrance upon or with respect to any property of any kind, real or personal, movable or immovable, now owned or hereafter acquired (including 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 Uniform Commercial Code or comparable law of the relevant jurisdiction).

 

Liquidity and Capex Project Account” means, subject to any Permitted Account Transfer, an account in the name of Borrower or Project Company and established with a Depositary Bank that is designated by Borrower to be the “Liquidity and Capex Project Account”.

 

Loan” has the meaning assigned to such term in Section 2.01(b).

 

Loan Parties” means, collectively, Holdings, Borrower and, following the Tranche A Funding Date, Project Company.

 

Loss Proceeds” means insurance proceeds, condemnation awards or other similar compensation, awards, damages and payments or relief (exclusive, in each case, of proceeds of business interruption, workers’ compensation, employees’ liability, automobile liability, builders’ all risk liability and general liability insurance) with respect to any Event of Loss.

 

“Major Maintenance Reserve Account” means, subject to any Permitted Account Transfer, an account in the name of Borrower or Project Company and established with a Depositary Bank that is designated by Borrower to be the “Major Maintenance Reserve Account”.

 

“Major Maintenance Reserve Amount” has the meaning assigned to such term in Section 5.29(b)(ii)(F).

 

Majority Lenders” means, at any time, Lenders having Loans and Commitments outstanding that represent more than 50% of the sum of all Loans and Commitments then outstanding.

 

Market Consultant (Feedstock)” means The Jacobsen Publishing Company or another similarly qualified consultant approved by the Administrative Agent in its sole discretion.

 

 23

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Market Consultant (Renewable Diesel)” means ICF International, Inc. or another similarly qualified consultant approved by the Administrative Agent in its sole discretion.

 

Material Adverse Effect” means, with respect to any Loan Party, a material adverse effect on: (a) the business, assets, properties (including the Site), operations or financial condition of the Loan Parties, taken as a whole; (b) the ability of the Loan Parties, taken as a whole, to perform their material obligations under the Financing Documents in accordance with the terms thereof; (c) the rights and remedies of the Secured Parties, taken as a whole, under the Financing Documents; or (d) the rights or remedies of such Loan Party under the Material Project Documents, taken as a whole.

 

Material Communication” has the meaning assigned to such term in Section 5.11(ao).

 

Material Construction Contracts” means:

 

(a)           each EPC Agreement;

 

(b)           the Haldor License Agreement;

 

(c)           the Haldor Guarantee Agreement;

 

(d)           the Haldor Catalyst Supply Agreement;

 

(e)           the Haldor Purchase Agreement; and

 

(f)            the Reactor Purchase Agreement;

 

(g)           solely to the extent such contracts are assigned from ARB to the Loan Parties, the EPC Subcontracts;.

 

provided that notwithstanding anything to the contrary herein or in any other Financing Document (including the delivery obligation under Section 4.01(d)), no agreement shall be a “Material Construction Contract” until the Tranche A Funding Date.

 

Material Project Counterparty” means each Person (other than GCE Holdings, any Loan Party, any Agent or any Lender) from time to time party to any Material Project Document.

 

Material Project Documents” means:

 

(a)           the Initial Material Project Documents;

 

(b)           any Additional Material Project Documents; and

 

(c)           any Replacement Project Document in respect of any of the foregoing;

 

provided that (i) notwithstanding anything to the contrary herein or in another other Financing Document, the Pre-Acquisition Material Project Documents shall be “Material Project Documents” only following the Acquisition on the Tranche A Funding Date and (ii) notwithstanding anything to the contrary herein or in any other Financing Document (including the delivery obligation under Section 4.01(d)), no agreement shall be an “Initial Material Project Document” until the Tranche A Funding Date.

 

 24

Bakersfield Refinery – Senior Credit Agreement

 

 

 

provided, however, that any Material Project Document shall cease to be a Material Project Document when all material obligations thereunder have been indefeasibly performed and/or paid in full or if such Material Project Document has otherwise terminated (except due to a breach, default, termination for convenience or force majeure event, in each case to the extent not otherwise permitted in accordance with this Agreement) in accordance with its terms (excluding contingent indemnification and other provisions that by their express terms survive the fulfillment of the obligations of such party).

 

Material Project Documents Prepayment Offer” has the meaning assigned to such term in Section 2.06(b)(i).

 

Maturity Date” means the earliest to occur of (a) November 4, 2026, and (b) the date upon which the entire outstanding principal amount of the Loans, together with all unpaid interest, fees, charges and costs, shall be accelerated in accordance with this Agreement.

 

Maximum Liquidity and Capex Amount” has the meaning assigned to such term in Section 5.29(b)(ii)(A)(1)(zy).

 

Mojave Spur Pipeline Operating Agreement” means that certain Operating Agreement for the Mojave Spur Pipeline, dated as of January 29, 1997, by and between Kern River Cogeneration Company, a California general partnership, Sycamore Cogeneration Company, a California general partnership, Texaco Exploration and Production, Inc., a Delaware corporation, State Street Bank and Trust Company of California, N.A., and Texaco Refining and Marketing Inc., a Delaware corporation.

 

Mojave Spur Pipeline Ownership Agreement” means that certain Ownership Agreement for the Mojave Spur Pipeline, dated as of January 29, 1997, by and among Texaco Exploration and Production, Inc., a Delaware corporation, Kern River Cogeneration Company, a California general partnership, Sycamore Cogeneration Company, a California general partnership, State Street Bank and Trust Company of California, N.A., and Texaco Refining and Marketing, Inc., a Delaware corporation.

 

Monthly Date” means the last Business Day of any month.

 

Moody’s” means Moody’s Investors Service, Inc., or any successor to the rating agency business thereof.

 

Mortgage” means that certain Deed of Trust, Security Agreement, Assignment of Rents and Leases and Fixture Filing, to be entered into on the Tranche A Funding Date, from Project Company, as trustor, to the Title Company, as the trustee, for the benefit of the Collateral Agent, as beneficiary, which agreement shall be in the form attached hereto as Exhibit Q.

 

Mortgaged Property” means any Property that is subject to a Mortgage.

 

 25

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA that is subject to Title IV of ERISA to which any Loan Party contributes or is obligated to contribute, or with respect to which any Loan Party has or could reasonably be expected to have any liability.

 

Net Available Amount” means:

 

(a)           in respect of any Extraordinary MPD Proceeds, the aggregate amount of payments received by any Loan Party or their respective Affiliates in respect of such proceeds net of (i) all reasonable and documented out-of-pocket costs and expenses (if any) and, if applicable, reasonable transaction costs (including reasonable legal and accounting fees and expenses), incurred or reasonably anticipated to be incurred by the applicable Loan Party in connection with the collection of such proceeds; (ii) federal, state, provincial, foreign and local Taxes (other than any income taxes) reasonably estimated to be actually payable by the Loan Parties within the current or the immediately succeeding tax year in connection therewith to the extent such amounts were not deducted in determining the amount of such proceeds; and (iii) the Swap Portion Amount associated with unwinding any Senior Secured Swap Agreements;

 

(b)           in the case of any Event of Loss, the aggregate amount of Loss Proceeds received by any Loan Party or any of their respective Affiliates in respect of such Event of Loss, net of (i) all reasonable and documented out-of-pocket costs and expenses (if any) and, if applicable, reasonable transaction costs (including reasonable legal and accounting fees and expenses), incurred or reasonably anticipated to be incurred by the applicable Loan Party in connection with the collection of such proceeds; (ii) federal, state, provincial, foreign and local Taxes (other than any income taxes) reasonably estimated to be actually payable by the Loan Parties within the current or the immediately succeeding tax year in connection therewith to the extent such amounts were not deducted in determining the amount of such proceeds; and (iii) the Swap Portion Amount associated with unwinding any Senior Secured Swap Agreements; and

 

(c)           in the case of any Disposition, the aggregate amount received by any Loan Party or any of their respective Affiliates in respect of such Disposition, net of (i) all reasonable and documented out-of-pocket costs and expenses (if any) and, if applicable, reasonable transaction costs (including reasonable legal and accounting fees and expenses), incurred or reasonably anticipated to be incurred by the applicable Loan Party in connection with the collection of such proceeds; (ii) federal, state, provincial, foreign and local Taxes (other than any income taxes) reasonably estimated to be actually payable by the Loan Parties within the current or the immediately succeeding tax year in connection therewith to the extent such amounts were not deducted in determining the amount of such proceeds; (iii) the Swap Portion Amount associated with unwinding any Senior Secured Swap Agreements; and (iv) (x) the principal amount, premium or penalty, if any, and interest, breakage costs or other amounts of any Indebtedness (other than Indebtedness under the Financing Documents or other Indebtedness secured by a Lien on the Collateral) that is secured by the property subject to such Disposition and is required to be repaid in connection with such Disposition, to the extent such amounts were not deducted in determining the amount of such proceeds and (y) a reasonable reserve determined by a financial officer (or any other officer performing equivalent duties thereof) of Borrower in its reasonable business judgment and solely to the extent required under the applicable purchase agreement for any purchase price adjustments (including working capital adjustments or adjustments attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Disposition) expressly contemplated by the purchase agreement relating to such Disposition.

 

 26

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Net Cash Flow” means, as of each Quarterly Date, the amount of funds available in the Revenue Account as of such date after giving effect to the withdrawals, transfers and payments specified in clauses (A) through (EG) of Section 5.29(b)(ii) on or prior to such date.

 

Non-Recourse Parties” has the meaning assigned to such term in Section 10.13.

 

Note” has the meaning assigned to such term in Section 2.05(b)(ii).

 

Obligations” means all advances to, and debts (including Accrued Interest, interest accruing after the maturity of the Loan and interest accruing after the filing of any Bankruptcy), liabilities, obligations, Prepayment Premium, covenants and duties of, any Loan Party arising under any Financing Document, or otherwise with respect to any Loan, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any debtor relief law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

Officer’s Certificate” means, with respect to any Loan Party, a certificate signed by an Authorized Representative of such Loan Party.

 

OnQuest Subcontract” means that certain Engineering Subcontract Agreement, dated as of May 21, 2020, by and between CTCI (as successor in interest to ARB, Inc.) and Primoris Design & Construction, Inc.

 

Operating Account” means, subject to any Permitted Account Transfer, an account in the name of Borrower or Project Company and established with a Depositary Bank that is designated by Borrower to be the “Operating Account”.

 

Operating Budget” means a proposed annual operating plan and budget prepared by Borrower in accordance with Section 5.20(a) (or in the case of the annual operating plan and budget for 2022, the operating budget delivered to the Administrative Agent on or before the Eighth Amendment Effective Date in accordance with Section 4(i) of the Eighth Amendment), of (a) anticipated Project Revenues, (b) anticipated Operating Expenses, (c) anticipated Capital Expenditures and (d) anticipated payments in connection with any Permitted Indebtedness, in each case, detailed by quarter for the following calendar year, which annual operating plan and budget shall be in a form reasonably satisfactory to the Administrative Agent, as may be amended from time to time in accordance with Section 5.20(c) and including all amounts permitted in accordance with Section 5.20(c).

 

 27

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Operating Expenses” means any and all of the expenses paid or payable by or on behalf of the Loan Parties in relation to the operation and maintenance (except as set forth below) of the Project, including consumables, payments under any operating lease, taxes (including franchise taxes, property taxes and sales taxes and excluding income taxes), insurance (including the costs of premiums and deductibles and brokers’ expenses), Capital Lease Obligations and purchase money obligations (to the extent permitted under Section 6.02(b)), payments under the applicable Material Project Documents and the other applicable Project Documents which are contemplated by the then-current Operating Budget, costs and fees attendant to obtaining and maintaining in effect the Authorizations relating to the Project payable during such period, payments made to security, police services, legal, accounting and other professional fees attendant to any of the foregoing items payable during such period and other expenses set forth in the Operating Budget (including payments to Affiliates of the Loan Parties for the provision of administrative and management services (to the extent set forth in the Operating Budget)), but exclusive of Capital Expenditures and payments in respect of payments of principal and interest in respect of the Obligations or any other Indebtedness. Operating Expenses do not include non-cash charges, including depreciation, amortization, income taxes, non-cash taxes or other bookkeeping entries of a similar nature.

 

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

 

Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made under any Financing Document or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Financing Document. For the avoidance of doubt, “Other Taxes” shall not include any Excluded Taxes.

 

Participant” has the meaning assigned to such term in Section 10.04(f).

 

Participant Register” has the meaning assigned to such term in Section 10.04(f).

 

PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

Pension Plan” means any employee pension benefit plan as defined in Section 3(2) of ERISA (other than a Multiemployer Plan) that is subject to the provisions of Title IV or Section 302 of ERISA, or Section 412 of the Code, and in respect of which any Loan Party 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 or with respect to which any Loan Party has or could reasonably be expected to have any liability.

 

Performance Tests” means (a) the “Performance Test” (howsoever defined) in the CTCI EPC Agreement, (b) performance tests that are substantially equivalent to the “Performance Test” (howsoever defined) in each of the other EPC Agreements and satisfactory to the Required Lenders (in consultation with the Independent Engineer) or (c) “Commissioning Tests” (howsoever defined) in each of the EPC Agreements.

 

 28

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Permitted Account Transfer” means, with respect to any Collateral Account, the opening of a new account in the Project Company’s name substantially concurrently with the closing of the same account in the Borrower’s name, in each case, following the Tranche A Funding Date and so long as such account is subject to Project Company’s entry into a Control Agreement substantially similar to the Control Agreement in respect of such Collateral Account prior to such transfer and all other steps taken to perfect the security interests purported to be created by the Security Documents in such new account are taken.

 

Permitted Contest Conditions” means, with respect to any Loan Party, a contest, pursued in good faith, challenging the enforceability, validity, interpretation, amount or application of any law, tax or other matter (legal, contractual or other) by appropriate proceedings timely instituted if (a) such Loan Party diligently pursues such contest, (b) such Loan Party establishes adequate reserves with respect to the contested claim if and to the extent required by GAAP and (c) such contest (i) could not reasonably be expected to have a Material Adverse Effect and (ii) does not involve any material risk or danger of any criminal or unindemnified civil liability being incurred by the Administrative Agent or the Lenders.

 

Permitted Hedging Activities” means a Swap Agreement entered into with a Permitted Hedging Counterparty that hedges the Loan Parties’ exposure to fluctuations in the prices of renewable diesel, feedstock or environmental attributes.

 

Permitted Hedging Counterparty” means a counterparty to a Swap Agreement, in its capacity as counterparty to such Swap Agreement, if and to the extent that such counterparty is or was a Lender or an Affiliate thereof that has, or whose obligations are guaranteed by an entity that has, a credit rating of at least BBB+ by S&P or Baa1 by Moody’s with respect to its long term unsecured debt on the date such Swap Agreement was entered into.

 

Permitted Indebtedness” has the meaning assigned to such term in Section 6.02.

 

Permitted Lien” means, with respect to any Loan Party, any of the following:

 

(a)           Liens arising by reason of:

 

(i)        taxes, assessments or governmental charges either secured by a bond or which are not yet due or payable, or which are being contested pursuant to the Permitted Contest Conditions;

 

(ii)       security, pledges or deposits in the ordinary course of business for payment of workmen’s compensation or unemployment insurance or other types of social security benefits; and

 

(iii)      good faith deposits or pledges incurred or created in connection with or to secure the performance of bids, tenders, contracts (other than contracts for the payment of money), leases, statutory obligations, surety bonds or appeal bonds entered into in the ordinary course of business or under Applicable Law.

 

 29

Bakersfield Refinery – Senior Credit Agreement

 

 

 

(b)           Liens of mechanics, carriers, landlords, warehousemen, materialmen, laborers, repairmen’s, employees or suppliers or any similar Liens arising by operation of law incurred in the ordinary course of business with respect to obligations which are not due or, which are adequately bonded, and which are being contested pursuant to the Permitted Contest Conditions;

 

(c)           Liens arising out of judgments, orders or awards that have been adequately bonded, are fully covered by insurance (subject to a customary deductible) or with respect to which a stay of execution has been obtained pending an appeal or proceeding for review pursuant to the Permitted Contest Conditions;

 

(d)           Liens arising with respect to zoning restrictions, easements, licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar charges or encumbrances on the use of real property which, individually or in the aggregate, do not materially detract from the value of the affected property and do not materially interfere with the ordinary conduct of the business of such Loan Party;

 

(e)           Liens or the interests of lessors to secure purchase money obligations permitted under Section  6.036.02(cb); provided that such Lien encumbers only the specific goods or equipment so purchased and proceeds thereof;

 

(f)            Liens arising under ERISA and Liens arising under the Code with respect to an employee benefit plan (as defined in Section 3(2) of ERISA) that do not constitute an Event of Default under Section 7.01(i);

 

(g)           Liens created under the Security Documents;

 

(h)           Liens securing obligations under any Permitted Working Capital Facility on the applicable Loan Party’s: (i) accounts receivable or proceeds arising from the sale of the following categories of inventory: (x) feedstock, including soybean oil, camelina oil and other plant-based oil and animal fat and (y) finished products, including renewable diesel, jet fuel and gas and other similar output or products; and any account into which such accounts receivable or proceeds will be paid; (ii) feedstock and product inventories; (iii) contract rights, other general intangibles and all documents of title solely to the extent such items relate to feedstock or product inventories (and excluding, for the avoidance of doubt, any intellectual property); and (iv) one or more deposit or securities accounts holding the proceeds of any of the foregoing;

 

(i)            (x) Liens on deposits of cash securing obligations under Swap Agreements constituting Permitted Hedging Activities approved by the Administrative Agent in accordance with Section 6.14 and (y) on and after the Commodity Hedging Program Date, Liens permitted under the Commodity Hedging Program (up to the amount approved by the Required Lenders pursuant to its approval right in the definition thereof) (so long as the terms and conditions of the Commodity Hedging Program related to such Liens shall have been satisfied and such Liens are subject to the Term Intercreditor Agreement);

 

 30

Bakersfield Refinery – Senior Credit Agreement

 

 

 

(j)            Liens or pledges of deposits of cash, in an amount not to exceed $600,000 in the aggregate, securing (i) bonds or other surety obligations entered into in the ordinary course of business or under Applicable Law and (ii) reimbursement obligations with respect to letters of credit to the extent permitted under Section 6.02(i)(ii);

 

(k)           (i) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies and burdening only deposit accounts or other funds maintained with a creditor depository institution, in each case, granted in the ordinary course of business in favor of such creditor depositary institution, provided that no such deposit account is a dedicated cash collateral account or is subject to restrictions against access by the depositor in excess of those set forth by regulations promulgated by the Board and no such deposit account is intended by Borrower to provide collateral to the depository institution and (ii) Liens in favor of a banking or other financial institution arising as a matter of law or in the ordinary course of business under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of setoff) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions, including any such Liens of each Depositary Bank over each applicable Collateral Account;

 

(l)            [Reserved];

 

(m)          all exceptions disclosed in the Title Policy;

 

(n)           Liens or the interests of lessors to secure purchase money obligations permitted under Section 6.02(b); provided that such Lien encumbers only the specific goods, equipment or software so financed, any accessions thereto, proceeds thereof and related books and records;

 

(o)           Liens or pledges of deposits of cash securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations to providers or property, casualty or liability insurance in the ordinary course of business;

 

(p)           Liens not otherwise permitted hereunder so long as the aggregate outstanding principal amount of obligations of Borrower or its Subsidiaries secured thereby does not exceed $500,000 at any one time; and

 

(q)           Liens securing Permitted Prepaid Sale Arrangements; provided that such Liens encumber only the applicable products subject to the prepaid sale agreement; and

 

(q)(r)       Liens that extend, renew or replace in whole or in part a Lien referred to above.

 

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Bakersfield Refinery – Senior Credit Agreement

 

 

 

“Permitted Prepaid Sale Arrangement” means one or more prepaid sale agreements for the sale of products produced by the Project satisfying the following conditions: (a) such prepaid sale arrangement could not reasonably be expected to adversely impact the ability of the Borrower to satisfy its obligations under the ExxonMobil Offtake Agreement; (b) at the time of entering into any such prepaid sale arrangement, the outstanding Indebtedness (including indebtedness for borrowed money, discounting of receivables, or prepayment or similar transactions) incurred in connection with entry into such prepaid sale arrangement, taken together with the outstanding Indebtedness (including indebtedness for borrowed money, discounting of receivables, or prepayment or similar transactions) incurred in connection with entry into any other Permitted Prepaid Sale Arrangement, does not exceed the difference between (x)(i) prior to the Final Completion Date, $20,000,000 in the aggregate and (ii) thereafter, $10,000,000 in the aggregate minus (y) the amount by which Indebtedness of the Loan Parties pursuant to Section 6.02(b) exceeds $5,000,000; and (c) the providers of such Indebtedness (or an agent on their behalf) shall not directly or indirectly be ExxonMobil, Sponsor or an Affiliate of any of the foregoing.

 

Permitted Working Capital Facility” means one or more revolving credit facilities (which may also provide for the issuance of letters of credit thereunder), working capital facilities, pre-paid supply arrangements, extended payment credit, ABL facilities of the Loan Parties satisfying the following conditions: (a) such Indebtedness is incurred to finance the working capital requirements of the Loan Parties; (b) the aggregate principal amount of such Indebtedness does not exceed $25,000,000; (c) such Indebtedness has no make-whole or similar prepayment premium; (d) such Indebtedness has no lien and/or payment priorities among the holders of obligations (including any “first-out” or “last-out” tranches); (e) the rate per annum applicable to such Indebtedness does not exceed a customary London interbank (or replacement thereof) rate plus 6.00% or base rate plus 5.00% (or such greater rate per annum with the prior written consent of the Required Lenders, in their sole discretion); (f) such Indebtedness does not require the payment of aggregate fees in excess of 2.00% of the principal amount of such Indebtedness (or such greater fees with the prior written consent of the Required Lenders, in their sole discretion); and (g, taken together with any other Permitted Working Capital Facility or Permitted Prepaid Sale Arrangement, does not exceed $125,000,000; (c) the providers of such Indebtedness (or an agent on their behalf) shall not directly or indirectly be ExxonMobil, Sponsor or an Affiliate of any of the foregoing; (d) the providers of such Indebtedness (or an agent on their behalf) shall have executed the ABL Intercreditor Agreement. ; and (e) such Permitted Working Capital Facility shall not be secured by any Liens on any Collateral unless such Liens shall be subject to the ABL Intercreditor Agreement and shall not be guaranteed by any Person unless such Person also guarantees the Indebtedness hereunder and under the other Financing Documents.

 

“Permitted Working Capital Facility Account” shall mean one or more deposit accounts or securities accounts in the name of the Borrower or the Project Company that is permitted to be secured for the benefit of the providers of any Permitted Working Capital Facility (or their agents on their behalf) in accordance with clause (h)(iv) of the definition of Permitted Lien.

 

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

 

Post-Default Rate” means a rate per annum which is equal to the sum of 2.00% per annum plus the Interest Rate.

 

Pre-Acquisition Material Project Documents” means, collectively, the Industrial Track Agreement, the Mojave Spur Pipeline Operating Agreement and the Mojave Spur Pipeline Ownership Agreement.

 

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Bakersfield Refinery – Senior Credit Agreement

 

 

 

Prepayment Offer Deadline” has the meaning assigned to such term in Section 2.06(c)(iii).

 

Prepayment Premium” means, with respect to any Called Principal, an amount equal to the projected amount of interest that would be due on the Called Principal from the date of such prepayment to the 32-month anniversary of the applicable Funding Date (assuming the Called Principal was not prepaid or repaid during such period), as reasonably calculated by the Administrative Agent. An example of the Prepayment Premium calculation is set forth on Annex II.

 

Prepayment Premium Event” has the meaning assigned to such term in Section 2.06(c)(iv).

 

Project” has the meaning assigned to such term in the recitals.

 

Project Company” has the meaning assigned to such term in the recitals.

 

Project Company Joinder” means a joinder agreement, substantially in the form of Exhibit W attached hereto, to be entered into by Project Company on the Tranche A Funding Date.

 

Project Contingency Costs” shall have the meaning assigned to such term in Section 5.29(g)(ii)(A).

 

Project Costs” means the following costs and expenses incurred or to be incurred on or prior to the Term ConversionFinal Completion Date in accordance with the Construction Budget and any change orders permitted in accordance with Section 6.09(b) (and, with respect to Capital Expenditures, in accordance with Section 6.07(d)), in connection with the ownership, acquisition, development, design, engineering, procurement, construction, installation, equipping, assembly, inspection, testing, completion, start-up, operation and financing of the Project:

 

(a)           all amounts payable under the Material Construction Contracts and the other Project Documents (including any reserves established for the payment of Remaining Costs pursuant to this Agreement), any contractor bonuses, site leasing and preparation costs, costs related to acquisition, development and construction of facilities, including for the receipt of feedstock, catalyst and other inputs to, and to transport or deliver renewable diesel and other outputs from, the Project, and all other amounts payable under the Project Documents prior to Final Completion, including contingency provided for in the Construction Budget and amounts payable in order to complete the Punch Lists;

 

(b)           financing, advisory, legal, accounting and other fees;

 

(c)           all other Project-related costs, including, feedstock and fuel-related costs and prepaid feedstock and fuel costs, any development costs (including funding any mitigation measures (such as community projects and the purchase of certain nearby residences) required in connection with the Project), management services fees and expenses and costs and expenses to complete the construction and financing of the Project;

 

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Bakersfield Refinery – Senior Credit Agreement

 

 

 

(d)           contingency funds, required reserves, start-up costs and initial working capital costs;

 

(e)           property, sales, and other non-income Taxes due in respect of the Project;

 

(f)            Operating Expenses incurred prior to the Term ConversionFinal Completion Date;

 

(g)           costs and expenses incurred with the negotiation and preparation of the Financing Documents and the Project Documents;

 

(h)           interest (including interest during construction), fees and other amounts payable under the Financing Documents; and

 

(i)            funding requirements of the Debt Service Reserve Account as specified in the definition of “Debt Service Reserve Funding Amount”.

 

Project Documents” means, without duplication, the Material Project Documents and each other agreement related to the development, construction, operation, maintenance, management, administration, ownership or use of the Project, the sale of renewable diesel therefrom, the provision of feedstocks, catalyst and other services thereto and Real Property rights and interests relating to the Project, in each case, entered into by, or assigned to, Borrower or Project Company.

 

Project Document Modification” has the meaning assigned to such term in Section 6.09(a)(i).

 

Project Revenues” means, for any period (without duplication), all revenue received by or on behalf of the Loan Parties during such period, interest paid in respect of any Collateral Accounts including proceeds from any business interruption insurance and any other receipts otherwise arising or derived from or paid or payable to the Loan Parties under the Project Documents or otherwise in respect of the Project.

 

Projections” has the meaning assigned to such term in Section 3.12(b).

 

Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

 

Prudent Industry Practices” means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by renewable diesel refinery projects in the United States, as applicable, of a type and size similar to the Project as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such projects, with commensurate standards of safety, performance, dependability, efficiency and economy. “Prudent Industry Practices” does not necessarily mean one particular practice, method, equipment specification or standard in all cases and shall not be interpreted to require the adoption or implementation of any particular best or most optimal practice, but is instead intended to encompass a broad range of acceptable practices, methods, equipment specifications and standards.

 

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Bakersfield Refinery – Senior Credit Agreement

 

 

 

Punch List” has the meaning assigned to such term (howsoever defined) in each of the applicable EPC Agreements.

 

Qualified CEO” means (i) Richard Palmer or (ii) any natural person in the position of chief executive officer of any Loan Party, its parent companies or Affiliates, who shall have been appointed in accordance with Section 5.28.

 

Qualified Officer” means (a)(i) any Qualified President, (ii) each of Noah Verleun, Gary McDonald, Mariah Mandt and, Mark Dennis and Mark Payette and (iii) a chief financial officer and a senior vice president of commercial operations of any Loan Party, its parent companies or Affiliates, on and after their appointment in accordance with Section 5.28 or (b) any natural person in a position substantially similar to a position contemplated by clause (a) and who shall have been appointed in accordance with Section 5.28.

 

Qualified Officer Event” has the meaning assigned to such term in Section 5.28.

 

Qualified President” means (i) Tom Rizzo, (ii) any other Qualified Officer reasonably suitable for the position of president or (iii) any natural person in the position of president of any Loan Party, its parent companies or Affiliates, who shall have been appointed in accordance with Section 5.28.

 

Quarterly Date” means the last Business Day of September, December, March and June in each fiscal year, the first of which shall be the first such day after the date hereof.

 

Rail Consultant” means PLG Consulting or another similarly qualified consultant approved by the Administrative Agent in its sole discretion.

 

Rail Development Milestones” means the rail development milestones set forth on Schedule 5.26(c).

 

Reactor Purchase Agreement” means that certain Purchase Order No. 20200504-001, dated as of May _____4, 2020, between Mangiarotti S.p.A., an Italian public limited company, and GCE Holdings, as required to be assigned pursuant to Section 4.02(r)(i) by GCE Holdings to, and assumed by, Project Company on the Tranche A Funding Date.

 

Real Property” means all right, title and interest of Project Company in and to any and all parcels of real property (including the Site) owned, leased or operated by Project Company together with all of Project Company’s interests in all improvements and appurtenant fixtures, equipment, personal property, easements and other property and rights incidental to the ownership, lease or operation thereof.

 

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Bakersfield Refinery – Senior Credit Agreement

 

 

 

Refinery Performance Test” means the performance test conducted by Borrower to determine the Project’s achievement of clause (b) of the definition of “Substantial Completion” and clause (dc) of “Final Completion”.

 

Refinery Performance Test Report” has the meaning assigned to such term in Section 5.265.23(b).

 

Register” has the meaning assigned to such term in Section 10.04(c).

 

Regulation D” means Regulation D of the Board.

 

Regulation U” means Regulation U of the Board.

 

Reinvestment Notice” means a written notice executed by a Qualified Officer of Borrower stating no Default or Event of Default has occurred and is continuing and that Borrower intends and expects to use all or a specified portion, as applicable, of the Net Available Amount of Extraordinary MPD Proceeds or the proceeds from an Event of Loss or the proceeds of a Disposition, as applicable, that will be used (a) with respect to any Event of Loss, to repair, restore or replace assets affected by such Event of Loss or (b) with respect to the receipt of Extraordinary MPD Proceeds or any Disposition, to acquire or repair assets useful in the business of Borrower and Project Company, in each case, which notice shall include (i) a certification that Borrower intends to complete the reinvestment or acquisition described therein the applicable time period required under Section 2.06(b) (or such longer period as may be described in the applicable Reinvestment Plan (subject to the Administrative Agent’s approval, acting at the direction of the Required Lenders, in accordance with Section 5.29(f)(i)(C))) and (ii) with respect to the use of the Net Available Amount of any Extraordinary MPD Proceeds or the proceeds of any Disposition to acquire assets useful in the business of Borrower and Project Company, a detailed description of the acquisition contemplated with such Net Available Amount, which description shall be acceptable to the Administrative Agent, acting at the reasonable direction of the Required Lenders.

 

Reinvestment Plan” has the meaning assigned to such term in Section 5.29(f)(i)(C)(I).

 

Related Fund” means with respect to any Lender, any fund that invests in loans and is managed or advised by the same investment advisor as such Lender, by such Lender or an Affiliate of such Lender.

 

Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

 

Release” means any release, spill, emission, emanation, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor Environment, including, the movement through ambient air, soil, surface water, ground water, wetlands, land or subsurface strata.

 

 36

Bakersfield Refinery – Senior Credit Agreement

 

 

 

Remaining Costs” means an aggregate amount equal to the sum of (i) (i) the amount reasonably anticipated to be necessary to fund the cost of any remaining Punch List items, (ii) (ii) the amount reasonably anticipated to be necessary to fund any other work that remains outstanding under any of the Material Construction Contracts and (iii) (iii) the amount reasonably anticipated to be necessary to fund any remainingoutstanding Project Costs incurred prior to the Term Conversion Date and any Project Costs reasonably anticipated to be necessary to achieve Final Completion (other than those described in the foregoing clauses (i) (i) and (ii)), in each case as reasonably determined by Borrower and verified in a writing to the Administrative Agent by the Independent Engineer; provided, that the aggregate amount of Remaining Costs funded using Project Revenues shall not exceed the Cash Flow Utilization Cap without the prior written consent of the Administrative Agent.

 

Renewable Diesel” has the meaning assigned to such term in the ExxonMobil Offtake Agreement (as in effect as of the date hereof).

 

Replacement Project Document” means, in respect of any Material Project Document, one or more binding replacement Project Documents (i) that are Additional Material Project Documents entered into in accordance with Section 6.09(a)(iii), (ii) that, in the case of any Project Document replacing a Material Project Document (other than any Material Construction Contract or the ExxonMobil Offtake Agreement), are (A) on terms (take as a whole) that are substantially similar to, or more favorable to the applicable Loan Party than, the terms and conditions of the Material Project Document being replaced, (B) is with a counterparty that is as creditworthy (measured as of the date of such counterparty enters into such replacement Material Project Document) as the Material Project Counterparty under the Material Project Document being replaced (measured as of the date of such Material Project Counterparty entered into the Material Project Document being replaced) and (C) has pricing and economic terms (taken as a whole) consistent with, or better than, the Material Project Document being replaced or (iii) on otherwise on terms and conditions acceptable, and with a counterparty of credit acceptable, to the Administrative Agent, acting at the reasonable direction of the Required Lenders.

 

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.

 

“Reporting Deliverable” has the meaning assigned to such term in Section 7.01(d).

 

Required Lenders” means, at any time, Lenders having aggregate Commitments (or, if the Commitments are terminated, holding Loans) representing eighty percent (80%) or more of the sum of the total Commitments (or, if the Commitments are terminated, aggregate outstanding principal amount of Loans) at such time; provided that, for the avoidance of doubt, the term “Commitments” as used in this definition refers to the Lenders’ aggregate Commitments, whether drawn or undrawn, as of the applicable date of determination.

 

Restoration” means, with respect to any Affected Property, the rebuilding, repair, restoration or replacement of such Affected Property.

 

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Bakersfield Refinery – Senior Credit Agreement

 

 

 

Restricted Payment” means:

 

(a)           any dividend paid by any Loan Party (in cash, Property or obligations) on, or other payments or distributions on account of, or the setting apart of money for a sinking or other analogous fund for, or the purchase, redemption, retirement or other acquisition by any Loan Party of, any portion of any membership interests in any Loan Party or any warrants, rights or options to acquire any such membership interests;

 

(b)           any payment of development, management or other fees, or of any other amounts, by any Loan Party to any Affiliate thereof; and/or

 

(c)           any other payment (in cash, Property or obligations to a parent company of the Loan Parties) to a parent company or Affiliate of the Loan Parties.

 

Revenue Account” means, subject to any Permitted Account Transfer, an account in the name of Borrower or Project Company and established with a Depositary Bank that is designated by Borrower to be the “Revenue Account”.

 

Revenue Transfer Certificate” means a certificate, substantially in the form of Exhibit U, to be delivered by an authorized officer of Borrower.