Exhibit 10.1

 

Execution Version

 

AMENDMENT NO. 4 TO CREDIT AGREEMENT AND AMENDMENT NO. 1 TO SECURITY AGREEMENT

 

This AMENDMENT NO. 4 TO CREDIT AGREEMENT AND AMENDMENT NO. 1 TO SECURITY AGREEMENT, dated as of February 23, 2022 (this “Agreement”), is entered into by and among BKRF HCB, LLC, a Delaware limited liability company (the “Borrower”), BKRF HCP, LLC, a Delaware limited liability company (“Holdings”), Global Clean Energy Holdings, Inc. (“GCEH”) (as assignee of Orion Energy Partners TP Agent, LLC), in its capacity as the administrative agent and collateral agent (in such capacity, the “Administrative Agent”), and GCEH in its capacity as the only Lender party to the Credit Agreement (as defined below) (the “Signatory Lender”). 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 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 Borrower, Holdings and the Administrative Agent have entered into that certain Pledge and Security Agreement, dated as of May 4, 2020 (as amended, amended and restated, modified and supplemented on or prior to the date hereof, the “Security Agreement” and the Security Agreement as expressly amended by this Agreement, the “Amended Security Agreement”)

 

WHEREAS, the OpCo Borrower, the OpCo Pledgor, the Project Company, Orion Energy Partners TP Agent, LLC, in its capacity as the OpCo Senior Administrative Agent and OpCo Senior Collateral Agent (in such capacity, the “OpCo Agent”) and each OpCo Senior Lender have entered into that certain Amendment No. 8 to Credit Agreement as of February 2, 2022 (“OpCo Senior Eighth Amendment”);

 

WHEREAS, immediately prior to entering into this Amendment, (a) the Borrower, Holdings, the Administrative Agent and each of Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II PV, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., Orion Energy Credit Opportunities GCE Co-Invest, L.P., Orion Energy Credit Opportunities Fund III PV, L.P., Orion Energy Credit Opportunities Fund III GPFA, L.P., Orion Energy Credit Opportunities Fund III, L.P., Orion Energy Credit Opportunities Fund III GPFA PV, L.P., LIF AIV 1, L.P., Voya Renewable Energy Infrastructure Originator I LLC, and Voya Renewable Energy Infrastructure Originator L.P. (collectively, the “Original Holdco Lenders”) entered into that certain Waiver No. 5 to Credit Agreement, dated as of the date hereof (the “Waiver”), pursuant to which the Original Holdco Lenders waived the Defaults and Events of Default specified therein, (b) the Original Holdco Lenders assigned their rights and obligations under the Credit Agreement to GCEH in accordance with the terms of and pursuant to that certain Master Assignment and Assumption Agreement of HoldCo Credit Facilities, dated as of the date hereof, by and among the Original Holdco Lenders and GCEH and (c) Orion Energy Partners TP Agent, LLC, resigned in its capacity as administrative agent and collateral agent under the Credit Agreement and the other Financing Documents and GCEH was appointed as the successor administrative agent and collateral agent under the Credit Agreement in accordance with the terms of and pursuant to that certain Resignation and Appointment Agreement, dated as of the date hereof, entered into by Borrower, Holdings, Orion Energy Partners TP Agent, LLC, GCEH and the Original Holdco Lenders;

 

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 on the Fourth Amendment Effective Date as set forth herein; and

 

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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:

 

1.           [Reserved].

 

2.           Amendments.

 

(a)          Subject to the satisfaction of the conditions precedent set forth in Section 4 hereof, as of the Fourth Amendment Effective Date, the Borrower, the other Loan Parties, the Administrative Agent and the Signatory Lender, hereby agree that the Credit Agreement is amended as follows: 


(i)          to delete 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;

 

(ii)         Annex I (Commitments) to the Credit Agreement is hereby deleted in its entirety and replaced in its entirety as set forth in Exhibit B attached hereto.

 

(b)          Subject to the satisfaction of the conditions precedent set forth in Section 4 hereof, as of the Fourth Amendment Effective Date, the Borrower, the other Loan Parties, the Administrative Agent and the Signatory Lender, hereby agree that the Security Agreement is amended as follows:

 

(i)          Section 4.14(a) is hereby deleted in its entirety and replaced in its entirety with the following:

 

(a)          Application of Proceeds. The proceeds of any collection, sale or other realization of all or any part of the Collateral pursuant to the Financing Documents or received on account of the Obligations following the exercise of any remedies pursuant to any Financing Document (including acceleration), and any other cash at the time held by the Collateral Agent under this Article IV with respect to the Collateral, shall be held by the Collateral Agent as Collateral hereunder and shall be applied by the Collateral Agent to the Obligations in accordance with the terms of Section 7.02 of the Applicable Agreement.”

 

3.           Representations and Warranties. 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.

 

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(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 Fourth 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).

 

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 “Fourth Amendment Effective Date”):

 

(a)          this Agreement shall have been executed by the Administrative Agent, the Loan Parties and the Signatory Lender (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)          the Waiver Effective Date (as defined in the Waiver) shall have occurred;

 

(c)          (i) all OpCo Senior Loans, in the aggregate amount of $337,600,000, shall have been fully funded and (ii) the Administrative Agent shall have received the executed OpCo Senior Eighth Amendment;

 

(d)          substantially concurrently with the Fourth Amendment Effective Date, (i) the Lender hall have been granted Class C Units on the terms set forth in the Borrower LLC Agreement (such Class C Units, the “HoldCo Equity Kicker”) so that the Lender holds Class C Units equal to the amount of the Loan made under the Credit Agreement by the Lender on the Fourth Amendment Effective Date; (ii) the Lender and Borrower shall have agreed in writing as to the portion of such Loan allocated to the purchase of the corresponding HoldCo Equity Kicker as required pursuant to Section 2.01(e) of the Credit Agreement; and (iii) the Lender shall have received a duly executed and delivered amendment to the Borrower LLC Agreement, including an amended Schedule I thereto to account for the issuance of the HoldCo Equity Kicker to the Lender, in the form attached hereto as Exhibit C.

 

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5.           Reaffirmation of Guarantees and Security Interests.

 

The Borrower and Holdings (each, a “Reaffirming Party”) hereby acknowledges that it (a) has reviewed the terms and provisions of this Agreement, (b) consents to the amendments to the Credit Agreement and the Security Agreement effected pursuant to this Agreement and consents to the terms, conditions and other provisions of this Agreement, 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 Agreement) under each of the Financing Documents to which it is a party.

 

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 Agreement 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 Agreement 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 Agreement or any of the transactions contemplated hereby.

 

6.           Miscellaneous.

 

(a)          Effect of Amendments. From and after the Fourth Amendment Effective Date, (i) the Credit Agreement shall be construed after giving effect to the amendments set forth in Section 2 hereof and all references to the Credit Agreement in the Financing Documents shall be deemed to refer to the Amended Credit Agreement and (ii) the Security Agreement shall be construed after giving effect to the amendments set forth in Section 2 hereof and all references to the Security Agreement in the Financing Documents shall be deemed to refer to the Amended Security Agreement.

 

(b)          No Other Modification. Except as expressly modified by this Agreement and the Waiver, the Credit Agreement, the Security 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 and the Security 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.

 

(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.

 

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(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, the Amended Security 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, THE AMENDED SECURITY 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, THE AMENDED SECURITY 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 HCB, LLC,
 as the Borrower
   
 By:/s/ RICHARD PALMER
 Name: Richard Palmer
 Title:  President
   
 BKRF HCP, LLC,
 as Holdings
   
 By: /s/ RICHARD PALMER
 Name: Richard Palmer
 Title:  President

 

[Signature Page to Amendment No. 4 to Credit Agreement]

 

   

 

 

 GLOBAL CLEAN ENERGY HOLDINGS, INC.,
 as Administrative Agent and a Lender
   
 By:/s/ RICHARD PALMER
 Name:  
 Title:

 

[Signature Page to Amendment No. 4 to Credit Agreement]

 

   

 

 

Exhibit A

to Amendment nO. 4

 

AMENDED CREDIT AGREEMENT

 

Conformed through Consent No. 3 and Amendment No. 3 to Credit Agreement dated July 29, 2021 (“Amendment No. 3”) – Amendment No. 3 also amends Annex I.Execution Version

 

Conformed through:

 

Amendment No. 1 to Credit Agreement and Waiver, dated as of September 28, 2020

Consent No. 2 and Amendment No. 2 to Credit Agreement, dated as of July 29, 2021

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

Amendment No. 4 to Credit Agreement, dated as of February 23, 2022

  

 

 

CREDIT AGREEMENT

 

dated as of

 

May 4, 2020

 

among

 

BKRF HCB, LLC,

as Borrower,

 

BKRF HCP, LLC,

as Pledgor,

 

THE LENDERS FROM TIME TO TIME PARTY HERETO,

 

and

 

ORIONGLOBAL CLEAN ENERGY PARTNERS TP AGENTHOLDINGS, LLCINC.,

 

as Administrative Agent and Collateral Agent

 

$65,000,00067,400,000 Senior Secured Term Loan Facility

 

 

 

   

 

 

TABLE OF CONTENTS

 

  Page
   
ARTICLE I DEFINITIONS27
   
Section 1.01Certain Defined Terms27
Section 1.02Terms Generally267
Section 1.03Accounting Terms2633
Section 1.04Divisions2733
   
ARTICLE II THE CREDITS2733
   
Section 2.01Loan2733
Section 2.02[Reserved]2935
Section 2.03Funding of the Loan2935
Section 2.04Funding of the Commitments[Reserved]2935
Section 2.05Repayment of Loan; Evidence of Debt2935
Section 2.06Prepayment of the Loan3036
Section 2.07Fees3339
Section 2.08Interest3340
Section 2.09Increased Costs3441
Section 2.10[Reserved]3542
Section 2.11Taxes3542
Section 2.12Payments Generally; Pro Rata Treatment; Sharing of Setoffs3845
Section 2.13Change of Lending Office47
Section 2.14Acknowledgement and Consent to Bail-In of EEA Financial Institutions47
Section 2.15Reimbursement Obligations under Lender Credit Support Documents48
Section 2.16Lender Joinder48
   
ARTICLE III REPRESENTATIONS AND WARRANTIES4248
   
Section 3.01Due Organization, Etc4248
Section 3.02Authorization, Etc4249
Section 3.03No Conflict4349
Section 3.04[Reserved]4349
Section 3.05No Material Adverse Effect[Reserved]4349
Section 3.06Litigation4349
Section 3.07Authorizations; Environmental Matters[Reserved]4350
Section 3.08Compliance with Laws and Obligations[Reserved]4451
Section 3.09[Reserved]4451
Section 3.10Licenses[Reserved]4451
Section 3.11Taxes4551
Section 3.12Full Disclosure; Projections4552
Section 3.13Senior Obligations4652
Section 3.14Solvency4652

 

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TABLE OF CONTENTS

 

Section 3.15Regulatory Restrictions on the Loan4652
Section 3.16Title; Security Documents4653
Section 3.17ERISA4653
Section 3.18Insurance[Reserved]4753
Section 3.19Single-Purpose Entity4753
Section 3.20Use of Proceeds4754
Section 3.21Membership Interests and Related Matters4754
Section 3.22Permitted Indebtedness; Investments54
Section 3.23Agreements with Affiliates55
Section 3.24No Bank Accounts55
Section 3.25No Default or Event of Default; No OpCo Senior Default or OpCo Senior Event of Default55
Section 3.26Foreign Assets Control Regulations55
Section 3.27Commercial Activity; Absence of Immunity56
Section 3.28OpCo Loan Parties Representation and Warranties4956
Section 3.29OpCo Senior Financing Documents56
   
ARTICLE IV CONDITIONS5056
   
Section 4.01Conditions to the Closing Date5056
Section 4.02Conditions toEach Funding Date5360
Section 4.03Conditions to Each Disbursement from the Construction Account63
   
ARTICLE V AFFIRMATIVE COVENANTS5764
   
Section 5.01Corporate Existence; Etc5764
Section 5.02Conduct of Business5764
Section 5.03Compliance with Laws and Obligations5764
Section 5.04Governmental Authorizations5864
Section 5.05Maintenance of Title[Reserved]5865
Section 5.06Insurance[Reserved]5865
Section 5.07Keeping of Books[Reserved]5865
Section 5.08Access to Records[Reserved]5866
Section 5.09Payment of Taxes, Etc[Reserved]5970
Section 5.10Financial Statements; Other Reporting Requirements[Reserved]5970
Section 5.11Notices[Reserved]6170
Section 5.12Scheduled Calls and Meetings[Reserved]6370
Section 5.13Use of Proceeds[Reserved]6371
Section 5.14Security[Reserved]6371
Section 5.15Further Assurances70
Section 5.16Security in Newly Acquired Property and Revenues71
Section 5.17Material Project Documents71
Section 5.18Accounts6471
Section 5.19Intellectual Property71
Section 5.20Operating Budget and Financial Model72

 

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TABLE OF CONTENTS

 

Section 5.21Collateral Account Report73
Section 5.22Construction of the Project; Final Completion73
Section 5.23Performance Test73
Section 5.24Operation and Maintenance of Project73
Section 5.25Certain Post-Closing Obligations74
Section 5.26Performance Testing75
Section 5.27[Reserved].76
Section 5.28Qualified CEO and Qualified Officers76
Section 5.29Accounts76
Section 5.30Causing of Subsidiary Distributions.78
Section 5.31Affirmative Covenants in OpCo Senior Transaction Documents.79
   
ARTICLE VI NEGATIVE COVENANTS  [RESERVED] 7280
   
Section 6.01Subsidiaries; Equity Issuances81
Section 6.02Indebtedness81
Section 6.03Liens, Etc.81
Section 6.04Investments, Advances, Loans81
Section 6.05Principal Place of Business; Business Activities82
Section 6.06Restricted Payments82
Section 6.07Fundamental Changes; Asset Dispositions and Acquisitions83
Section 6.08Accounting Changes84
Section 6.09Amendment or Termination of Material Project Documents; Other Restrictions on Material Project Documents; Amendment of OpCo Senior Financing Documents84
Section 6.10Transactions with Affiliates86
Section 6.11Accounts86
Section 6.12Guarantees86
Section 6.13Hazardous Materials87
Section 6.14No Speculative Transactions87
Section 6.15Change of Auditors87
Section 6.16Purchase of Capital Stock87
Section 6.17Withdrawals from the Collateral Account87
Section 6.18Performance Tests and Substantial Completion88
Section 6.19OpCo Senior Working Capital Facility and Commodity Hedging Documentation88
Section 6.20Qualified President88
Section 6.21Negative Covenants in OpCo Senior Transaction Documents88
   
ARTICLE VII EVENTS OF DEFAULT8089
   
Section 7.01Events of Default8089
Section 7.02Application of Payments92

 

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TABLE OF CONTENTS

 

ARTICLE VIII THE AGENTS8393
   
Section 8.01Appointment and Authorization of the Agents8393
Section 8.02Rights as a Lender8493
Section 8.03Duties of Agent; Exculpatory Provisions8494
Section 8.04Reliance by Agent8494
Section 8.05Delegation of Duties8494
Section 8.06Withholding of Taxes by the Administrative Agent; Indemnification8595
Section 8.07Resignation of Agent8595
Section 8.08Non-Reliance on Agent or Other Lenders8696
Section 8.09No Other Duties; Etc8696
Section 8.10Certain ERISA Matters[Reserved]8696
   
ARTICLE IX GUARANTY8797
   
Section 9.01Guaranty8797
Section 9.02Guaranty Unconditional8898
Section 9.03Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances8998
Section 9.04Waiver by the Guarantors8999
Section 9.05Subrogation8999
Section 9.06Acceleration8999
Section 9.07Limited Recourse Against Pledgor9099
   
ARTICLE X MISCELLANEOUS90100
   
Section 10.01Notices90100
Section 10.02Waivers; Amendments91101
Section 10.03Expenses; Indemnity; Etc92102
Section 10.04Successors and Assigns94104
Section 10.05Survival97108
Section 10.06Counterparts; Integration; Effectiveness98108
Section 10.07Severability98108
Section 10.08Right of Setoff98109
Section 10.09Governing Law; Jurisdiction; Etc98109
Section 10.10Acknowledgment Regarding Any Supported QFCs[Reserved]100111
Section 10.11Headings101111
Section 10.12Confidentiality101111
Section 10.13Non-Recourse[Reserved]102111
Section 10.14No Third Party Beneficiaries102112
Section 10.15Reinstatement102112
Section 10.16USA PATRIOT Act USURY102112
Section 10.17Electronic Execution of Assignments and Certain Other Documents103113

 

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TABLE OF CONTENTS

 

Exhibit A-Form of Assignment and Assumption
Exhibit B-Form of Note
ExhibitC-Form of Borrowing Request
Exhibit D-Form of Security Agreement
Exhibit E-Form of Lender Joinder
Annex I-Commitments
Annex II-Prepayment Premium Calculations
Annex III-Lending Offices
Schedule 1.01(a)-Equity Shareholders
Schedule 3.06-Litigation
Schedule 3.07-Environmental Matters
Schedule 3.10-Licenses
Schedule 3.21(a)-Subsidiaries
Schedule 3.21(b)-Capital Stock Options
Schedule 3.22(b)-Permitted Indebtedness
Schedule 3.23-Transactions with Affiliates

 

 v 

 

 

This CREDIT AGREEMENT (this “Agreement”) is dated as of May 4, 2020, among BKRF HCB, LLC, a Delaware limited liability company (“Borrower”), BKRF HCP, LLC, a Delaware limited liability company (“Pledgor”), each LENDER from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”) and ORIONGLOBAL CLEAN ENERGY PARTNERSHOLDINGS, INC. (as assignee of Orion Energy Partners TP AGENTAgent, 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 assignassigned, and BKRF OCB, LLC, a Delaware limited liability company (“OpCo Borrower”), will assumeassumed, the SPA pursuant to an assignment and assumption agreement, whereby OpCo Borrower will acquireacquired 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 OpCo Borrower will assign, and Project Company will assume, all of the Initial Material Project Documents (as defined herein) on or prior to the OpCo Tranche A Funding Date(as defined herein) in connection with the Acquisition;

 

WHEREAS, following the consummation of the Acquisition, OpCo 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, OpCo Borrower hashave requested the OpCo Senior Lenders (as defined herein) to extendprovide, and OpCo Senior Lenders have agreed to extendprovided, on the terms and conditions set forth in the OpCo Senior Credit Agreement (as defined herein) and the other OpCo Senior Financing Documents (as defined herein), a credit facility to OpCo Borrower inwith commitments totaling an aggregate principal amount of $300,000,000337,600,000 as of the Fourth Amendment Effective Date, as more fully described in the OpCo Senior Credit Agreement;

 

WHEREAS, in order to finance the capital required toby the OpCo Borrower in connection with the development, construction, completion, ownership and operation of the Project, Borrower has requested the Lenders to extend, and Lenders have agreed to extend, on the terms and conditions set forth herein and the other Financing Documents (as defined herein), a credit facility to Borrower in an aggregate principal amount of $65,000,00067,400,000, 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:

 

Article I

 

DEFINITIONS

 

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

 

Accounts” means (i) the Collateral Account and (ii) the Distribution Suspense Account.

 

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 Capital Raise” shall have the meaning assigned to sch term inSection 5.32(a).1

 

Additional Material Project Documents” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Administrative Agent” means (i) prior to the Fourth Amendment Effective Date, Orion Energy Partners TP Agent, LLC and (ii) on or after the Fourth Amendment Effective Date, Global Clean Energy Holdings, Inc., a Delaware corporation, in each case, 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 OpCo 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.

 

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

 

Agent Reimbursement Letter”means that certain Agent Reimbursement Letter, dated as of the Closing Date, among Borrower, the Administrative Agent and the Collateral Agent.

 

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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, OpCo Loan Party or any of their respective Subsidiaries 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.

 

as Amended and Refinanced” means and includes, in respect of any Indebtedness, or the agreement or contract pursuant to which such Indebtedness is incurred, any refinancing, replacement, renewal or extension of any Indebtedness in whole or in part provided that (a) the principal amount (or accreted value, if applicable) of such refinancing does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness, any amounts deposited in a debt service reserve or similar reserve account in connection with the issuance of such Indebtedness and the amount of all fees and expenses, including premiums and discounts incurred in connection therewith), (b) such refinancing, replacement, renewal or extension must have a weighted average life to maturity and a final maturity date no less than that of the outstanding amount of the Indebtedness being refinanced, (c) at the time thereof, no Default shall have occurred and be continuing or would result therefrom, (d) the restrictions on the distribution of dividends shall be no more restrictive than as provided under the Indebtedness being refinanced, (e) such refinancing, replacement, renewal or extension shall be incurred solely by the Person(s) who is an obligor under the Indebtedness being refinanced, replaced, renewed or extended and no other Person shall be an obligor thereunder, (f) such refinancing shall be non-recourse to the Loan Parties that is not in a Subsidiary of the same borrower as the OpCo Loan Party incurring such refinancing Indebtedness; and (g) following such refinancing, replacement, renewal or extension of any Indebtedness, the rights of the Lenders to foreclose or otherwise exercise remedies pursuant to the Financing Documents shall be no less favorable than prior to such refinancing, replacement, renewal or extension of any Indebtedness.

 

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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 bySection 10.04), in the form ofExhibit Aor 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(a) commencing on the earliest to occur of(i) the date on which the OpCo Senior Commitments shall have been fully drawn, and the OpCo Senior Loans shall have been fully applied to the payment of Project Costs or as otherwise permitted under the OpCo Senior Credit Agreement (including the funding of any reserves required or permitted thereunder), (ii) the date that is the one (1) year anniversary of the Closing Date and (iii) the date on which Borrower shall desire to make borrowings of Loans hereunder, upon not less than sixty (60) days prior written notice to the Administrative Agent, and (b) ending on the earliest to occur of (i)the Term Conversion Date, (ii)the date that is twenty (20) months after the earliest date under the precedingclause (a)and (iii) 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.

 

 9Bakersfield Refinery - HoldCo 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.

 

Borrower LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement of BKRF HCB, LLC, dated as of the date hereofClosing Date, entered into by Borrower and Pledgor, as amended by that certain First Amendment to the Amended and Restated Limited Liability Company Agreement of BKRF HCB, LLC, dated as of the Fourth Amendment Effective Date.

 

Borrower Operating Expenses” means the administrative expenses of the Loan Parties, including insurance and legal, accounting and other professional fees.

 

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.

 

Called Principal” means the aggregate principal amount of the Loans that are to be prepaid pursuant to Section 2.06(a), or has become or is declared to be immediately due and payable pursuant to the penultimatefinal 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” has the meaning assigned to such term in the OpCo 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.

 

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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 inclause (a)above entered into with a bank meeting the qualifications described inclause (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 ofclauses (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

 

(j)          cash.

 

 11Bakersfield Refinery - HoldCo Credit Agreement

 

  

CCI Hedging Amendment” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

CCI Hedging Documentation” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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 ofSection 2.09b), by anyLending Officeof 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.

 

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 Pledgor(other than (i) the Capital Stock in one or more parent companies of Pledgor owned by the Equity Shareholders and (ii) without duplication of the foregoing, the Class B Units and the Class C Units (which, as of the OpCo Tranche A Funding Date, will be held by the Senior Lender Equity Owners and the HoldCo Lender Equity Owners, respectively) and (iii) the Capital Stock in 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 Pledgor);

 

(b)          Pledgor 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 (other than, without duplication, (x) the Capital Stock in the Borrower owned by the HoldCo Lender Equity Owners and (y) the Class B Units and the Class C Units);

 

(c)          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 OpCo Pledgor;

 

(d)          OpCo Pledgor 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 OpCo Borrower; or

 

(e)          On or after theOpCo Tranche A Funding Date(after the consummation of the Acquisition) and thereafter, OpCo 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

 

 12Bakersfield Refinery - HoldCo Credit Agreement

 

  

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

 

Change OrderClass C Units” has the meaning assigned to such term in the OpCo Senior CreditBorrower LLC Agreement.

 

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

 

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

 

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

 

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

 

Collateral” means (i) all Property of Borrower and (ii) all Property of the Pledgor and (iii) the Capital Stock of Borrower owned by Pledgor, 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.

 

Collateral Account” means an account in the name of Borrower and established with a Depositary Bank that is designated by Borrower to be the “Collateral Account”, which account shall be subject to the Lien of the Collateral Agent (and subject to a Control Agreement).

 

Collateral Agent” means (i) prior to the Fourth Amendment Effective Date, Orion Energy Partners TP Agent, LLC and (ii) on or after the Fourth Amendment Effective Date, Global Clean Energy Holdings, Inc., a Delaware corporation, in each case, in its capacity as collateraladministrative agent for the Secured Parties under the Security Documents,Lenders hereunder and any successor thereto pursuant to Article VIII.

 

Commitment” means, with respect to each Lender, the commitment of such Lender to make a Loan to Borrower pursuant to Section 2.01(a), in a principal amount not to exceed the amount set forth opposite such Lender’s name on Annex I under the heading “Commitment”or as set forth in the Lender Joinder applicable to such Lender.

 

Commodity Hedging Documentation” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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.

 

 13Bakersfield Refinery - HoldCo Credit Agreement

 

  

Construction Account” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Construction Budget” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Construction Schedule” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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).

 

Correlative Affirmative Covenants” has the meaning assigned to such term inArticle V.

 

Correlative Negative Covenants” has the meaning assigned to such term inArticle VI.

 

Date Certain” means March 31, 2022.

 

Debt Service Reserve Account” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Debt Service Reserve Funding Amount” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Deemed Loan” means a draw or claim by Borrower under a Lender Credit Support Document which shall, for the avoidance of doubt, be permitted only pursuant to, and in accordance with, the HoldCo Lender Backstop Agreement.

 

Deemed Loan Conditions” means, with respect to any Loan underSection 2.01(a)(ii), the draw or claim on the Lender Credit Support Document shall have been made in accordance with the terms thereof.

 

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 the Accounts.

 

Disbursement Date” has the meaning assigned to such term inSection 4.03.

 

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Disposition” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Distribution Suspense Account” means an account in the name of Borrower and established with a Depositary Bank that is designated by Borrower to be the “Distribution Suspense Account”.

 

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

 

ECF Prepayment Offer” has the meaning assigned to such term inSection 2.06(b)(i).

 

ECF Sweep Amount” means, as of each Quarterly Date, 100% of the amount of funds available in the Collateral Account as of such date after giving effect to the withdrawals, transfers and payments specified in clauses (A) through (F) of Section 5.29(b5.15(a)(ii) on or prior to such date.

 

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 inclause (a)of this definition, or(c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described inclause (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.

 

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.

 

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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.

 

EPC Agreements” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

EPC Contractor” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Equity Shareholders” means the ultimate shareholders and/or other equity owners of Pledgor as of the Closing Date, as set forth onSchedule 1.01(a).

 

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.

 

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” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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

 

Event of Loss” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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

 

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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 underSection 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.

 

Extraordinary MPD Proceeds” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Extraordinary Receipts” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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.

 

Final Completion”has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Financial Model” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

 17Bakersfield Refinery - HoldCo Credit Agreement

 

  

Financial Staffing Plan” shall have the meaning assigned to such term inSection 5.32(b)(i)(A).2

 

Financing Documents” means this Agreement, each Note (if requested by a Lender), the Agent Reimbursement Letter, the HoldCo Lender Backstop Agreement,the Security Documents 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.

 

“First Amendment” means that certain Amendment No. 1 to Credit Agreement, dated as of September 28, 2020, by and among the Borrower, Pledgor, the Administrative Agent and the Required Lenders.

 

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 February 23, 2022, by and among the Borrower, Pledgor, the Administrative Agent and the Required Lenders.

 

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

 

“Fourth Amendment Purchase Agreement” means that certain Securities Purchase Agreement, dated as of the Fourth Amendment Effective Date, by and among Global Clean Energy Holdings, Inc., a Delaware corporation, and the purchasers and the other parties party thereto.

 

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

 

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 Initial Funding Date.

 

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

 

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

 

Government Official” means an official of a Governmental Authority.

 

 18Bakersfield Refinery - HoldCo Credit Agreement

 

  

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.

 

Guaranteed Obligations” means, with respect to any Guarantor, 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).

 

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.

 

 19Bakersfield Refinery - HoldCo Credit Agreement

 

  

HoldCo Equity Kicker” has the meaning assigned to such term in Section 4.02e(a).

 

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

 

HoldCo Lender Equity Owners” shall mean the “Class C Members” as defined in the Borrower LLC Agreement.

 

HoldCo Net Cash Flow” has the meaning assigned to such term in Section 5.295.15(a)(ii)(GH).

 

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” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

 20Bakersfield Refinery - HoldCo Credit Agreement

 

  

Independent Engineer” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Initial Funding Date” means the first Funding Date, on or following the Closing Date, on which all conditions specified inSection 4.02are satisfied (or waived in accordance withSection 10.02).

 

Intended Tax Treatment” has the meaning assigned to such term inSection 2.01(e).

 

Interest Rate” means at any time, a rate per annum equal to 15.00%.

 

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 Credit Support Document” has the meaning assigned to such term in the HoldCo Lender Backstop Agreement.

 

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

 

Lender Joinder” means a joinder agreement, substantially in the form attached hereto as Exhibit E, to be entered into by each Lender that joinsthisAgreement as a Lender after the Closing Date.

 

Lending Office” means the office designated as such beneath the name of a Lender set forth on Annex III 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).

 

 21Bakersfield Refinery - HoldCo Credit Agreement

 

  

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

 

Loan Parties” means, collectively, Pledgor and Borrower.

 

Loss Proceeds” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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.

 

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 Construction Contracts” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Material Project Counterparty” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Material Project Documents” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Maturity Date” means the earliest to occur of (a) November 4, 2027, 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.

 

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.

 

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.

 

 22Bakersfield Refinery - HoldCo Credit Agreement

 

  

Net Available Amount” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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

 

Note” has the meaning assigned to such term inSection 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.

 

OpCo Borrower” has the meaning assigned to such term in the recitals.

 

OpCo Loan Parties” has the meaning assigned to the term “Loan Parties” in the OpCo Senior Credit Agreement.

 

OpCo Pledgor” has the meaning assigned to the term “Holdings” in the OpCo Senior Credit Agreement.

 

OpCo Restricted Payments” has the meaning assigned to the term “Restricted Payments” in the OpCo Senior Credit Agreement.

 

OpCo Senior Administrative Agent” has the meaning assigned to the term “Administrative Agent” in the OpCo Senior Credit Agreement.

 

OpCo Senior Closing Date” has the meaning assigned to the term “Closing Date” in the OpCo Senior Credit Agreement.

 

OpCo Senior Collateral Accounts” has the meaning assigned to the term “Collateral Accounts” in the OpCo Senior Credit Agreement.

 

OpCo Senior Collateral Agent” has the meaning assigned to the term “Collateral Agent” in the OpCo Senior Credit Agreement.

 

OpCo Senior Commitment” has the meaning assigned to the term “Commitment” in the OpCo Senior Credit Agreement.

 

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

 

 23Bakersfield Refinery - HoldCo Credit Agreement

 

  

OpCo Senior Credit Agreement Drag Along Expiry Date” means the earlier of (a) the date that the OpCo Senior Credit Agreement is Amended and Refinanced and (b) the earlier of the date on which (i) no Commitment (as defined in the OpCo Senior Credit Agreement) remains in effect, (ii) no Loan (as defined in the OpCo Senior Credit Agreement) remains outstanding and unpaid and (iii) no other Obligation (as defined in the OpCo Senior Credit Agreement) is owing to any Secured Party (as defined in the OpCo Senior Credit Agreement) under the OpCo Senior Credit Agreement or under any other OpCo Senior Financing Document.

 

OpCo Senior Default” has the meaning assigned to the term “Default” in the OpCo Senior Credit Agreement or any OpCo Senior Replacement Credit Agreement (as applicable).

 

OpCo Senior Event of Default” has the meaning assigned to the term “Event of Default” in the OpCo Senior Credit Agreement or any OpCo Senior Replacement Credit Agreement (as applicable).

 

OpCo Senior Extraordinary Receipts Account” has the meaning assigned to the term “Extraordinary Receipts Account” in the OpCo Senior Credit Agreement.

 

OpCo Senior Financing Documents” has the meaning assigned to the term “Financing Documents” in the OpCo Senior Credit Agreement.

 

OpCo Senior Lenders” has the meaning assigned to the term “Lenders” in the OpCo Senior Credit Agreement.

 

OpCo Senior Loan” has the meaning assigned to the term “Loan” in the OpCo Senior Credit Agreement.

 

OpCo Senior Permitted Liens” has the meaning assigned to the term “Permitted Liens” in the OpCo Senior Credit Agreement.

 

OpCo Senior Permitted Indebtedness” has the meaning assigned to the term “Permitted Indebtedness” in the OpCo Senior Credit Agreement.

 

OpCo Senior Replacement Credit Agreement” means the OpCo Senior Credit Agreement, as Amended and Refinanced from time to time.

 

OpCo Senior Transaction DocumentsSeventh Amendment” has the meaning assigned to the term “Transaction DocumentsSeventh Amendment” in the OpCo Senior Credit Agreement.

 

OpCo Senior Working Capital FacilityTransaction Documents” has the meaning assigned to the term “Permitted Working Capital Facility” in the OpCo Senior Credit Agreement.

 

 24Bakersfield Refinery - HoldCo Credit Agreement

 

  

OpCo Tranche A Funding Date” has the meaning assigned to the term “Tranche A Funding DateTransaction Documents” in the OpCo Senior Credit Agreement.

 

Operating Budget” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Operating Expenses” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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 inSection 10.04f).

 

Participant Register” has the meaning assigned to such term inSection 10.04f).

 

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” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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.

 

 25Bakersfield Refinery - HoldCo Credit Agreement

 

  

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

 

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

 

(a)          Liens created under the Security Documents;

 

(b)          (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 the Liens of each Depositary Bank over each applicable Account;

 

(c)          Liens not otherwise permitted hereunder so long as the aggregate outstanding principal amount of obligations of Borrower or any other Loan Party secured thereby does not exceed $100,000 at any one time; and

 

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

 

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

 

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

 

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

 

Prepayment Offer Deadline” has the meaning assigned to such term inSection2.06(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 36-month anniversary of theapplicable 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.

 

 26Bakersfield Refinery - HoldCo Credit Agreement

 

  

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 Costs” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Project Documents” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Project Document Modification” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Qualified CEO” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Qualified Officer” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

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

 

Qualified President” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Quarterly Date” means the date that is fourteen (14) Business Days after each March 31, June 30, September 30 and December 31 of every fiscal year.

 

Refinery Performance Test” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Refinery Performance Test Report” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Register” has the meaning assigned to such term inSection 10.04c).

 

Regulation D” means Regulation D of the Board.

 

 27Bakersfield Refinery - HoldCo Credit Agreement

 

  

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 cause the OpCo Loan Parties 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 OpCo 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 2.06(d)(iii))) 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 2.06(d)(ii)(A).

 

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.

 

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.

 

Required Lenders” means, at any time, Lenders having aggregate Commitments (or, if the Commitments are terminated, holding Loans) representing eightyfifty percent (8050%) 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.

 

 28Bakersfield Refinery - HoldCo 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.

 

S&P” meansStandard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., or any successor to the rating agency business thereof.

 

Sanctioned Country” means, at any time, a country or territory that is subject to comprehensive Sanctions. For the avoidance of doubt, as of the Closing Date, Sanctioned Countries are the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria.

 

Sanctioned Person” means, at any time, (a) any Person listed in anySanctions-relatedlist of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country, or (c) any Person owned or controlled by any such Person.

 

Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.

 

Second Amendment Effective Date” means March 26, 2021.3

 

Secured Obligations” has the meaning assigned to such term in the Security Agreement.

 

Secured Parties” means (a) the Agents and (b) the Lenders.

 

Security Agreement” means that certain Pledge and Security Agreement, to be entered into ondated as of the Closing Date, among the Loan Parties and the Collateral Agent, substantially in the form attached hereto as Exhibit D.

 

Security Documents” means the Security Agreement, the Control Agreement, all Uniform Commercial Code financing statements required by any Security Document and any other security agreement or instrument to be executed or filed pursuant hereto or any Security Document.

 

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

 

 29Bakersfield Refinery - HoldCo Credit Agreement

 

  

Senior Lender Equity Owners” has the meaning assigned to the term “Lender Equity Owners” in the OpCo Senior Credit Agreement.

 

Senior Net Cash Flow” has the meaning assigned to such term in Section 5.295.15(a)(ii)(DE).

 

Significant Milestone” means each milestone set forth in the Construction Schedule that is identified onSchedule 4.01(f)to the OpCo Senior Credit Agreement.

 

Site” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Solvent” means, with respect to any Person on a particular date that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital and (e) such Person is not insolvent as defined under applicable Bankruptcy or insolvency laws; provided that unless otherwise provided under Applicable Law, the amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such date, represents the amount that can reasonably be expected to become an actual or matured liability.

 

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

 

Sponsor” means Global Clean Energy Holdings, Inc., a Delaware corporation.

 

Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

 

Substantial Completion” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

SusOils” means Sustainable Oils, Inc., a Delaware corporation.

 

SVO” means the Securities Valuation Office of the National Association of Insurance Commissioners.

 

 30Bakersfield Refinery - HoldCo Credit Agreement

 

Swap Agreement” means any agreement or instrument (including a cap, swap, collar, option, forward purchase agreement or other similar derivative instrument) relating to the hedging of any interest under any Indebtedness or hedging of the prices of renewable diesel, feedstock or environmental attributes.

 

Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings (including backup withholdings) with respect to the Loan now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, including any taxes, levies, imposts, duties, deductions, charges or withholdings on interest payments on the Loan and on any payments made by any Loan Party to an Agent or Lender pursuant to an obligation of such Loan Party under any of the Financing Documents, and all interest, additions to tax or penalties or similar liabilities with respect thereto.

 

Term Conversion Date” has the meaning assigned to such term in the OpCo Senior Credit Agreement.

 

Third Amendment” means that certain Consent No. 3 and Amendment No. 3 to Credit Agreement, dated as of July 29, 2021, by and among the Borrower, HoldingsPledgor, the Administrative Agent and the Required Lenders. 4

 

Third Amendment Effective Date” has the meaning assigned to such term in the Third Amendment.5

 

Transaction Documents” means each of the Financing Documents, Borrower LLC Agreement and the Material Project Documents.

 

UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that if, with respect to any filing statement or by reason of any mandatory provisions of law, the perfection or the effect of perfection or non-perfection of the security interests granted to the Collateral Agent pursuant to the applicable Security Document is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, UCC means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of each applicable Financing Document and any filing statement relating to such perfection or effect of perfection or non-perfection.

 

Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the applicable jurisdiction.

 

US Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

U.S. Special Resolution Regimes” has the meaning assigned to such term in Section 10.10.

 

USA PATRIOT Act” has the meaning assigned to such term inSection 10.16.

 

 31Bakersfield Refinery - HoldCo Credit Agreement

 

  

Voting Stock” means, with respect to any Person, Capital Stock the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of a contingency.

 

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under theBail-In Legislationfor the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

Section 1.02         Terms Generally. Except as otherwise expressly provided, the following rules of interpretation shall apply to this Agreement and the other Financing Documents:

 

(a)          the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined;

 

(b)          whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms;

 

(c)          the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”;

 

(d)          the word “will” shall be construed to have the same meaning and effect as the word “shall”;

 

(e)          unless the context requires otherwise, any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or therein) and shall include any appendices, schedules, exhibits, clarification letters, side letters and disclosure letters executed in connection therewith; provided that, any cross references to the OpCo Senior Financing Documents (included any term defined therein) shall be construed as referring to such OpCo Senior Financing Document as in effect on the Closing Date, subject to any amendment, supplement or other modification entered into in accordance with the terms of this Agreement.

 

(f)          any reference herein to any Person shall be construed to include such Person’s successors and assigns to the extent permitted under the Financing Documents and, in the case of any Governmental Authority, any Person succeeding to its functions and capacities;

 

(g)          the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision;

 

(h)          all references herein to Articles, Sections, Appendices, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Appendices, Exhibits and Schedules to, this Agreement; and

 

 32Bakersfield Refinery - HoldCo Credit Agreement

 

  

(i)          the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

Section 1.03        Accounting Terms. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP. If Borrower notifies the Administrative Agent that Borrower wishes to amend any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then Borrower’s compliance with such provision shall be determined on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in a manner satisfactory to Borrower and the Administrative Agent.

 

Section 1.04        Divisions. Any reference herein or in any other Financing Document to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a Person, or an allocation of assets to a series of a Person (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale or transfer or similar term, as applicable to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder and under any other Financing Document (and each division of any limited liability company that is a Subsidiary, Affiliate, joint venture or any other like term shall also constitute such a separate Person or entity hereunder or any other Financing Document).

 

Article II

 

THE CREDITS

 

Section 2.01        Loan.

 

(a)          Loans.

 

(i)          Subject to the terms and conditions set forth in this Agreement and in reliance upon the representations and warranties of the Loan Parties set forth herein, each Lender severally, but not jointly, agrees to advance to Borrower from time to time during the Availability Periodon the Fourth Amendment Effective Date such loans as Borrower may request pursuant to this Section 2.01 (such loans, together with the principal amount of each Deemed Loan,individually, a “Loan” and, collectively, the “Loan” or “Loans”), in an aggregate principal amount which, when added to the aggregate principal amount of all prior Loans(including borrowings under this Agreement and Deemed Loans)made by such Lender, does not exceed such Lender’s Commitment;provided, that Borrower may only request Loans(other than Deemed Loans)once every ninety (90) days and(ii) two additional times in any calendar year (without reliance on the foregoingclause (i)), so long as, in the case of this clause (ii), each such request occurs at least thirty (30) days following the immediately prior request for Loans made by Borrowerof such Lender’s Commitment.

 

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(ii)         In addition, and notwithstanding anything herein to the contrary, each Lender, on the date of each drawing under any Lender Credit Support Document by the OpCo Senior Administrative Agent in accordance with the HoldCo Lender Backstop Agreement and the applicable Lender Credit Support Document, shall be deemed to have made a Loan to Borrower(subject only to the Deemed Loan Conditions), in the principal amount equal to the amount drawn or paid under any Lender Credit Support Document, and Borrower shall, subject only to the Deemed Loan Conditions,be unconditionally obligated to repay each Lender for any amount so drawn as a Deemed Loan (but without duplication of any obligation to repay a Loan hereunder). Such Deemed Loan shall be immediately due and payable to the Lender if an Event of Default has occurred and is continuing underSection 7.01(f)(with respect to Borrower) or if the Loans have been accelerated pursuant toArticle VII, court order, or otherwise, no loan or extension of credit to or for the benefit of Borrower is permitted at such time; and such Deemed Loan shall in all other circumstances be treated as a Loan hereunder made on the date of receipt of proceeds arising from the draw or claim under the applicable Lender Credit Support Document and payable as a Loan hereunder and in accordance with the other provisions of this Agreement.Subject only to the Deemed Loan Conditions,Borrower’s obligations to repay each applicable Lender in full for any drawing under any Lender Credit Support Document shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against any Lender or any other Person (otherany defense related to the Deemed Loan Conditions and the defense of such repayment having been made). [Reserved.]

 

(b)          No Reborrowing. Amounts prepaid or repaid in respect of any Loan may not be reborrowed.

 

(c)          Notice of Loan Borrowing. To request a borrowing of Loans(other than Deemed Loans), Borrower shall deliver to the Administrative Agent and the Lenders, on a Business Day, a Borrowing Request. The date of the proposed borrowing (eachsuch date, together with the borrowing contemplated by the first sentence ofSection 2.04, atheFunding Date”) specified in a Borrowing Request shall be no earlier than twelveone (121) Business DaysDay after the delivery of such Borrowing Request. Each Borrowing Request shall specify the amount to be borrowed and the proposed Funding Date (which shall be a Business Day). Upon receipt of such Borrowing Request, the Administrative Agent shall promptly notify each Lender thereof

 

(d)          [Reserved]. For the avoidance of doubt, no Borrowing Request shall be required in respect of Deemed Loans.

 

(d)          Notice by the Administrative Agent to the Lenders. Promptly(and in any case within one (1) Business Day)following receipt of a Borrowing Request in accordance with thisSection 2.01, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loanrequestedto be made as part of the Loan.

 

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(e)          Tax Considerations. For U.S. federal income tax purposes, each of Borrower, and Pledgor and the Lenders agree that it is their intention that, for U.S. federal, state and local income tax purposes, unless Borrower is treated as a disregarded entity of Lender, (1) the Loan, together with the corresponding HoldCo Equity Kicker, shall be treated as an investment unit, (2) the purchase price of such investment unit shall equal the total purchase price paid by the Lenders for the Loan on eachthe Funding Date, (3) a portion of the purchase price of the investment unit shall, for U.S. federal income tax purposes, be allocated to the purchase of the corresponding HoldCo Equity Kicker as mutually agreed by the parties, and (4) the Loan shall be treated as a debt instrument, and not as a “contingent payment debt instrument,” (within the meaning of Treasury Regulations Section 1.1275-4), for U.S. federal, state and local income tax purposes (together, the “Intended Tax Treatment”). Borrower will provide any information reasonably requested in writing from time to time by any Lender regarding the original issue discount associated with the Loan for U.S. federal income tax purposes. Each of Borrower, Pledgor and the Lenders agrees to file income tax returns consistent with the Intended Tax Treatment, including the allocation set forth in this Section 2.01(e), and shall not take any position inconsistent with the Intended Tax Treatment in any judicial, administrative, or other proceeding, unless otherwise required as a result of a change in applicable tax law (including any regulations issued by any taxing authorities, any rulings or similar guidance by any taxing authority) or a determination (within the meaning of section 1313(a) of the Code or similar provision of state or local law). Notwithstanding the foregoing, for all purposes (except for the purpose of this Section 2.01(e)), each Lender shall be treated as having lent the full amount of its pro rata portion of the principal amount of the Loan. In addition, notwithstanding the foregoing, the Intended Tax Treatment of the Loan shall apply only for U.S. federal, state and local income tax purposes.

 

Section 2.02        [Reserved].

 

Section 2.03        Funding of the Loan. Subject to the satisfaction or waiver of the conditions set forth in Section 4.02, each Lender shall, no later than 12:00 Noon, New York City time, on the Funding Datespecified in the respective Borrowing Request, make available to the Administrative Agent at the Funding Office an amount in Dollars and in immediately available funds equal to the Loan to be made by such Lender. Administrative Agent shall make available to OpCo Borrower, by deposit into the Construction Account, the aggregate of the amounts made available to Administrative Agent by the Lenders, in like funds as received by the Administrative Agent.

 

Section 2.04        Funding of the Commitments[Reserved]. At the close of business on the last Business Day of the Availability Period, each Lender shall make a Loan to the Borrower in an amount equal to the remaining undrawn Commitments, which amounts shall be contributed by the Borrower to the OpCo Borrower pursuant to the OpCo Senior Financing Documents. The date of funding of any such Loans pursuant to the foregoing sentence shall be a Funding Date. Once borrowed or repaid, no Loan may be reborrowed. In addition, the Borrower may not reduce or terminate Commitments hereunder if such reduction or termination would not be permitted under the HoldCo Lender Backstop Agreement..

 

Section 2.05        Repayment of Loan; Evidence of Debt.

 

(a)          Promise to Repay at Maturity. Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the Lenders, the unpaid principal amount of the Loan then outstanding on the Maturity Date.

 

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(b)          Evidence of Debt.[Reserved].

 

(i)          Each Lender may maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of Borrower to such Lender resulting from the Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. In the case of a Lender that does not request execution and delivery of a Note evidencing the Loan made by such Lender to Borrower, such account or accounts shall, to the extent not inconsistent with the notations made by the Administrative Agent in the Register, be conclusive and binding on Borrower absent manifest error;providedthat the failure of any Lender to maintain such account or accounts or any error in any such account shall not limit or otherwise affect any obligations of Borrower.

 

(ii)         Borrower agrees that, upon the request to the Administrative Agent by any Lender, Borrower will execute and deliver to such Lender, as applicable, a promissory note (a “Note”) substantially in the form ofExhibit Bpayable to such Lender in an amount equal to such Lender’s Loan evidencing the Loan made by such Lender.Borrower hereby irrevocably authorizes each Lender to make (or cause to be made) appropriate notations on the grid attached to such Lender’s Notes (or on any continuation of such grid), which notations, if made, shall evidence, inter alia, the date of, the outstanding principal amount of, and the interest rate applicable to the Loan evidenced thereby. Such notations shall, to the extent not inconsistent withany BorrowingRequest and Deemed Loans (or, in the absence of which, the notations made by the Administrative Agent in the Register), be conclusive and binding on Borrower absent manifest error;providedthat the failure of any Lender to make any such notations or any error in any such notations shall not limit or otherwise affect any obligations of Borrower. A Note and the obligation evidenced thereby may be assigned or otherwise transferred in whole or in part only in accordance withSection 10.04(b).

 

Section 2.06        Prepayment of the Loan.

 

(a)          Optional Prepayments. Borrower shall have the right at any time and from time to time, upon at least ten (10) Business Days’ prior written notice to the Administrative Agent stating the prepayment date and aggregate principal amount of the prepayment, to prepay any Loan in whole or in part, subject to the requirements of this Section 2.06. Each prepayment pursuant to this Section 2.06(a) shall be accompanied by the Prepayment Premium (if any) with respect to the principal amount of the Loan being prepaid. Each partial prepayment of any Loan under this Section 2.06(a) shall be in an aggregate amount at least equal to $1,000,000 and an integral multiple of $500,000 in excess thereof (or such lesser amount as may be necessary to prepay the aggregate principal amount then outstanding with respect to such Loan). No prepayment under Section 2.06(b) shall constitute a voluntary prepayment under this Section 2.06(a).

 

(b)          Mandatory Prepayments and Offers to Prepay.

 

(i)          Excess Cash Flow Sweep. Beginning with the Quarterly Date occurring after the Term Conversion Date and each Quarterly Date thereafter, Borrower shalloffer to prepay the Loans of each Lender in an amount equal to such Lender’s pro rata share of the ECF Sweep Amount within three (3) Business Days of each such Quarterly Date, accompanied by payment of all accrued interest on the amount prepaid and a calculation as to the ECF Sweep Amount (which calculation shall be in form and substance reasonably satisfactory to the Administrative Agent)(each such offer to prepay referred to in thisclause (i), an “ECF Prepayment Offer”).

 

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(c)          Terms of All Prepayments.

 

(i)          All partial prepayments of the Loans shall be applied on a pro rata basis to the Loan of all Lenders, provided that such pro rata allocation shall, in the case ofSection 2.06(b)(i)only occur in respect of the Lenders who have accepted their respective applicable ECF Prepayment Offers.

 

(ii)         Each prepayment of Loans shall be accompanied by payment of all accrued interest on the amount prepaid, the Prepayment Premium (other than in the case of Section 2.06(b)(i) above) and any additional amounts required pursuant to Section 2.11.

 

(iii)        No later than ten (10) Business Days after receiving an ECF Prepayment Offer (the expiration of such ten (10)Business Day-period, the “Prepayment Offer Deadline”), each Lender shall advise Borrower in writing whether it has elected to accept such prepayment offer, which it shall determine in its sole discretion;providedthat any Lender which shall fail to so advise Borrower by the Prepayment Offer Deadline shall have been deemed to have accepted such prepayment offer. Each of the Lenders shall have the right, but not the obligation, to accept or reject itspro rataportion of the prepayment offer by Borrower. Borrower shall have no obligation to prepay any amounts in respect of any declining Lender’spro rataportion of the prepayment offer.[Reserved].

 

(iv)        It is understood and agreed that if the Obligations are accelerated or otherwise become due prior to their maturity date, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Premium that would have applied if, at the time of such acceleration, Borrower had prepaid, refinanced, substituted or replaced any or all of the Loan as contemplated in Section 2.06(a) (any such event, a “Prepayment Premium Event”), will also be due and payable without any further action (including any notice requirements otherwise applicable to Prepayment Premium Events, if any) as though a Prepayment Premium Event had occurred and such Prepayment Premium shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any Prepayment Premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Prepayment Premium shall also be payable in the event the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. EACH LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) (ON BEHALF OF ITSELF AND THE OTHER LOAN PARTIES) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS, OR MAY PROHIBIT, THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each Loan Party expressly agrees (to the fullest extent that each may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(c)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Prepayment Premium to Lenders as herein described is a material inducement to Lenders to provide the Commitments and make the Loans contemplated hereby. The Borrower acknowledges, and the parties hereto agree, that each Lender has the right to maintain its investment in the Loans free from repayment by the Borrower (except as herein specifically provided for) and that the provision for payment of a Prepayment Premium by the Borrower, in the event that the Loans are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.

 

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(v)         Each party hereto acknowledges and agrees that Loans of a particular Lender shall be prepaid pursuant to Section 2.06(a) in the order in which such Loans were made or acquired by such Lender pursuant to Section 2.01.

 

(d)          OpCo Senior Extraordinary Receipts Account.

 

(i)          If any OpCo Loan Party receives any amount of any Extraordinary Receipts (other than Extraordinary Receipts described in clause (4) of the definition thereof (to wit, proceeds of Indebtedness)) in an amount less than $1,000,000 in the aggregate, Borrower shall be permitted to cause the OpCo Loan Parties to transfer such amounts in accordance with the OpCo Senior Credit Agreement.

 

(ii)         If any OpCo Loan Party receives any Extraordinary Receipts in an amount equal to or in excess of $1,000,000 in the aggregate, Borrower shall either:

 

(A)         other than Extraordinary Receipts described in clause (4) of the definition thereof (to wit, proceeds of Indebtedness), submit to Administrative Agent and Lenders a Reinvestment Notice setting forth, in reasonable detail, a reinvestment plan in respect of such Extraordinary Receipts (such plan, a “Reinvestment Plan”) within the earlier of (x) fifteen (15) days following the receipt by the OpCo Loan Parties of such Extraordinary Receipts and (y) forty-five (45) days following the Disposition or Event of Loss, as applicable; or

 

(B)         cause the OpCo Loan Parties to use the proceeds of such Extraordinary Receipts to repay the OpCo Senior Loans in accordance with Section 2.06(b) of the OpCo Senior Credit Agreement or any OpCo Senior Replacement Credit Agreement.

 

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 (iii)        If the events in clause (ii)(A) above occur and the Administrative Agent approves the applicable Reinvestment Plan (at the direction of the Required Lenders, such approval not to be unreasonably withheld, conditioned or delayed), then Borrower shall be permitted to cause the OpCo Loan Parties to cause such Extraordinary Receipts to be transferred from the OpCo Senior Extraordinary Receipts Account from time to time to use in accordance with such Reinvestment Plan. In the event any Reinvestment Plan is not approved by the Administrative Agent (at the direction of the Required Lenders, such approval not to be unreasonably withheld, conditioned or delayed), the Borrower may elect to re-submit Reinvestment Plans until a Reinvestment Plan is approved or to use the proceeds of such Extraordinary Receipts to repay the OpCo Senior Loans in accordance with Section 2.06(b) of the OpCo Senior Credit Agreement or any OpCo Senior Replacement Credit Agreement, as applicable; provided that, Borrower shall not be permitted to re-submit the Reinvestment Notice following the date on which the Administrative Agent has rejected the third (3rd) Reinvestment Notice submitted by the Borrower.

 

(iv)        If funds remain on deposit in the OpCo Senior Extraordinary Receipts Account following Borrower’s certification to Administrative Agent of the OpCo Loan Parties’ completion of the reinvestment activities described in such Reinvestment Plan, Borrower shall promptly cause the OpCo Loan Parties to cause such funds to be transferred in accordance with the OpCo Senior Credit Agreement or any OpCo Senior Replacement Credit Agreement.

 

Notwithstanding the foregoing or anything to the contrary in this Section 2.06, prior to the OpCo Senior Credit Agreement Drag Along Expiry Date, to the extent that the OpCo Senior Administrative Agent consents to any proposed Reinvestment Plan (as defined in the OpCo Senior Credit Agreement) submitted by the OpCo Borrower under the OpCo Senior Credit Agreement, and the OpCo Loan Parties are otherwise in compliance (which, for this purpose, shall take into effect any waivers in respect of, or amendments to the OpCo Senior Credit Agreement whose purpose and/or effect are to waive compliance) with the applicable provisions relating to the proposed Reinvestment Plan (as defined in the OpCo Senior Credit Agreement) as set forth and defined in the OpCo Senior Credit Agreement covering substantially the same subject matter as any proposed Reinvestment Plan submitted by the Borrower in accordance with this Section 2.06, then the Administrative Agent and Required Lenders shall be deemed to have consented to the proposed Reinvestment Plan submitted by the Borrower under this Section 2.06.

 

Section 2.07        Fees.

 

(a)          Agent Fees. Borrower agrees to pay to each of the Administrative Agent and the Collateral Agent, for its own account, amounts payable in the amounts and at the times separately agreed upon in the Agent Reimbursement Letter[Reserved].

 

(b)          Payment of Fees. All fees that may be payable by any Loan Party to any Lender hereunder from time to time pursuant to a written agreement between such Loan Party and such Lender shall be paid on the dates due, in Dollars and immediately available funds, to the Administrative Agent for distribution to the Lenders entitled thereto. Fees paid shall not be refundable under any circumstances absent manifest error.

 

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Section 2.08        Interest.

 

(a)          Loan. The Loans (including any Accrued Interest) shall bear interest at a rate per annum equal to the Interest Rate on and after the date of borrowing of such Loans.

 

(b)          Default Interest. If all or a portion of the principal amount of any Loan, interest in respect thereof or any other amount due under the Financing Documents shall not be paid when due (whether at the stated maturity, by acceleration or otherwise) or there shall occur and be continuing any other Event of Default, then, to the extent so elected by the Administrative Agent, acting at the direction of the Required Lenders, after Borrower has been notified in writing by the Administrative Agent, acting at the direction of the Required Lenders (or automatically upon the occurrence of an Event of Default pursuant to Section 7.01(f) hereof), the outstanding principal amount of the Loan (whether or not overdue) (to the extent legally permitted) shall bear interest at a rate per annum equal to the Post-Default Rate, from the date of such nonpayment or occurrence of such Event of Default, respectively, until such amount is paid in full (after as well as before judgment) or until such Event of Default is no longer continuing, respectively.

 

(c)          Payment of Interest. Subject to Section 2.08(e), accrued interest on each Loan shall be payable in arrears on each Quarterly Date and on the Maturity Date; provided that (i) interest accrued pursuant to Section 2.08(b) shall be payable on demand and (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment.

 

(d)          Computation. All interest hereunder shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The computation of interest shall be determined by the Administrative Agent and such determination shall be conclusive absent manifest error.

 

(e)          Payment in Kind. In the event that, on any Quarterly Date (other than a Quarterly Date on which an Event of Default has occurred and is continuing), the portion of the interest paid to the Administrative Agent (for the benefit of the Lenders) under Section 5.295.15(a)(ii)(F) is not sufficient to pay the interest due and payable pursuant to Section 2.08(c), Borrower may pay up to the full amount of such insufficiency in kind (in lieu of payment in cash) on each applicable Quarterly Date, by written election of Borrower to the Administrative Agent at least ten (10) Business Days prior to such Quarterly Date. The aggregate outstanding principal amount of the Loans shall be automatically increased on each such Quarterly Date by the amount of such interest paid in kind. For the avoidance of doubt, any portion of the Interest Rate not paid in kind shall be paid in cash.

 

(f)          Miscellaneous. For the avoidance of doubt, (i) on each Quarterly Date prior to the Maturity Date, any interest on the Loan then due and payable shall be paid, either in cash or in kind, in accordance with this Agreement and (ii) on the Maturity Date, any interest on the Loan then due and payable shall be paid entirely in cash in accordance with this Agreement. All amounts of interest added to the principal of the Loans pursuant to Section 2.08(e) shall bear interest as provided herein, be payable as provided in Section 2.05 and shall be due and payable on the Maturity Date. The Administrative Agent’s determination of the principal amount of the Loan outstanding at any time shall be conclusive and binding, absent manifest error.

 

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Section 2.09        Increased Costs.

 

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

 

(i)          impose, modify or deem applicable any reserve, special deposit or similar requirement (including any such requirement imposed by the Board under Regulation D or otherwise) against assets of, deposits with or for account of, or credit extended by, any Lender;

 

(ii)         subject 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 to any Taxes (other than Indemnified Taxes or Excluded Taxes) on its loan, loan principal, commitments or other obligations or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(iii)        impose on any Lender any other condition not otherwise contemplated hereunder affecting this Agreement or the Loan made by such Lender;

 

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Loan (or of maintaining its obligation to make any such Loan) to Borrower or to increase the cost to such Lender or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

 

(b)          Capital Requirements. If any Lender reasonably determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loan made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

 

(c)          Certificates from Lenders. A certificate of a Lender setting forth calculations in reasonable detail of the amount or amounts necessary to compensate such Lender or its respective holding company, as the case may be, as specified in Section 2.09(a) or Section 2.09(b) shall be delivered to Borrower and shall be conclusive absent manifest error. Borrower shall pay such Lender the amount shown as due on any such certificate within thirty (30) Business Days after receipt thereof.

 

(d)          Delay in Requests. Promptly after any Lender has determined that it will make a request for increased compensation pursuant to this Section 2.09, such Lender shall notify Borrower thereof. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that Borrower shall not be required to compensate a Lender pursuant to this Section 2.09 for any increased costs or reductions incurred more than ninety (90) days prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the ninety (90)-day period referred to above shall be extended to include the period of retroactive effect thereof.

 

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Section 2.10       [Reserved].

 

Section 2.11         Taxes.

 

(a)          Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Financing Document shall be made free and clear of and without withholding or deduction for any Taxes; provided that if such Loan Party (or the applicable withholding agent) shall be required by law to withhold or deduct any Taxes from such payments, then (i) to the extent such Taxes are Indemnified Taxes or Other Taxes, the sum payable by such Loan Party shall be increased as necessary so that after making all required withholdings and deductions (including withholdings and deductions applicable to additional sums payable under this Section) the Administrative Agent, the Collateral Agent or the Lender (as the case may be) receives an amount equal to the sum it would have received had no such withholdings or deductions been made, (ii) such Loan Party shall make or shall cause to be made such withholdings and deductions and (iii) such Loan Party shall pay or shall cause to be paid the full amount withheld and deducted to the relevant Governmental Authority in accordance with Applicable Law.

 

(b)          Payment of Other Taxes by Borrower. Borrower shall timely pay or cause to be paid any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law.

 

(c)          Indemnification by Borrower. Loan Parties shall jointly and severally indemnify or cause to be indemnified the Administrative Agent, the Collateral Agent and each Lender, within thirty (30) days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section but without duplication of any amounts indemnified under Section 2.11(a)) paid or payable by the Administrative Agent, the Collateral Agent or such Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by the Collateral Agent or a Lender, or by the Administrative Agent on its own behalf or on behalf of the Collateral Agent or a Lender, shall be conclusive absent manifest error.

 

(d)          Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any Loan Party to a Governmental Authority, the relevant Loan Party shall deliver or cause to be delivered to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment satisfactory to the Administrative Agent, acting reasonably.

 

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 (e)          Forms. (i) Any of the Administrative Agent, the Collateral Agent or any Lender (including any assignee Lender) that is legally entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which Borrower is located with respect to payments under this Agreement shall deliver to Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested in writing by Borrower, the Collateral Agent or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without or at a reduced rate of, withholding. In addition, any of the Administrative Agent, the Collateral Agent or any Lender, if reasonably requested in writing by Borrower or the Administrative Agent, shall deliver such other documentation prescribed by law or reasonably requested by Borrower or the Administrative Agent as will enable Borrower or the Administrative Agent to determine whether or not such Lender is subject to any withholding tax. Upon the reasonable written request of Borrower or the Administrative Agent, or if any form or certification previously delivered expires or becomes obsolete or inaccurate, any Lender shall update any such form or certification previously delivered pursuant to this Section 2.11(e)(i). Notwithstanding anything to the contrary in the preceding three sentences, the completion, execution and submission of such documentation shall not be required if in the Lender’s judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense (or, in the case of a Change in Law, any incremental material unreimbursed cost or expense) or would materially prejudice the legal or commercial position of such Lender.

 

(ii)         Without limiting the generality of the foregoing, in the event that Borrower is a US Person,

 

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

 

(B)         any Lender who is not a US Person shall, to the extent it is legally entitled to do so, deliver to Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Lender becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of Borrower or the Administrative Agent), whichever of the following is applicable:

 

(I)         in the case of a Lender who is not a US Person claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under this Agreement or any Transaction Document, executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under this Agreement or any Transaction Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

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(II)        executed copies of IRS Form W-8ECI;

 

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

 

(IV)        to the extent a Lender who is not a US Person is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Lender is a partnership and one or more direct or indirect partners of such Lender are claiming the portfolio interest exemption, such Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner.

 

(f)          If the Administrative Agent, the Collateral Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this Section 2.11, it shall pay over such refund to Borrower, net of all of its out-of-pocket expenses (including Taxes with respect to such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that Borrower, upon the request of the Administrative Agent, the Collateral Agent or any Lender, as the case may be, agrees to repay as soon as reasonably practicable the amount paid over to Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, the Collateral Agent or any Lender, as the case may be, in the event the Administrative Agent, the Collateral Agent or any Lender, as the case may be, is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.11(f), in no event will the Administrative Agent, the Collateral Agent or any Lender be required to pay any amount to Borrower pursuant to this Section 2.11(f) the payment of which would place the Administrative Agent, the Collateral Agent or the Lender, as the case may be, in a less favorable net after-Tax position than it would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 2.11(f) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

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(g)          If a payment made to the Administrative Agent, the Collateral Agent or any Lender under this Agreement would be subject to U.S. federal withholding Tax imposed by FATCA if such Administrative Agent, Collateral Agent or Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Administrative Agent, Collateral Agent or Lender shall deliver to Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or the Administrative Agent as may be necessary for Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Person’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause, “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

(h)          Survival. Each party’s obligations under this Section 2.11 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under any Transaction Documents.

 

Section 2.12        Payments Generally; Pro Rata Treatment; Sharing of Setoffs.

 

(a)          Payments by Borrower. Unless otherwise specified, Borrower shall make each payment required to be made by it hereunder, or by way of transfer from Depositary Bank, (whether of principal, interest, fees, or under Section 2.09 or 2.11, or otherwise) or under any other Financing Document (except to the extent otherwise provided therein) prior to 1:00 p.m., New York City time, on the date when due, in immediately available funds, without setoff or counterclaim. Any amounts received after such time on any date shall be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent for the benefit of each Agent and Lender to the accounts specified in writing by the Administrative Agent to the Borrower on or after the Closing Date, except as otherwise expressly provided in the relevant Financing Document and payments pursuant to Sections 2.11, 2.12 and 10.03, which shall be made directly to the Persons entitled thereto, in each case subject to the terms of this Agreement. The Administrative Agent shall distribute any such payments received by it in like funds as received for account of any other Person to the appropriate recipient promptly (and in any case not more than one (1) Business Day) following receipt thereof. Payments to each Lender shall be made to such Lender in accordance with its Administrative Questionnaire. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the immediately preceding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All amounts owing under this Agreement or under any other Financing Document are payable in Dollars.

 

(b)          Application of Insufficient Payments. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest, fees and other amounts then due hereunder, such funds shall be applied (i) first, to pay interest, fees and other amounts (except for the amounts required to be paid pursuant to the following clause (ii)) then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest, fees and such other amounts then due to such parties, and (ii) second, to pay principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.

 

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(c)          Pro Rata Treatment. Except to the extent otherwise provided herein: (i) the Loan shall be made fromthe Lenders, and each termination or reduction of the amount of the Commitments underSection 2.04shall be applied to the respective Commitments of the Lenders, pro rata according to the amounts of their respective applicable Commitments; (ii) except as provided in Section 2.06(c), each payment or prepayment of principal of the Loan by Borrower shall be made for account of the Lenders pro rata in accordance with the respective unpaid principal amounts of the Loan held by them being paid or prepaid; and (iii) each payment of interest on the Loan by Borrower shall be made for account of the Lenders (except, in the case of prepayments under Section 2.06(b), for Lenders not receiving a principal repayment thereunder), pro rata in accordance with the amounts of interest on the Loan then due and payable to the respective Lenders.

 

(d)          Sharing of Payments by Lenders.If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment or recover any amount in respect of any principal of or interest on any of its Loan resulting in such Lender receiving a greater proportion of the aggregate amount of the Loan and accrued interest thereon then due than the proportion received by any other Lender, then, unless otherwise agreed in writing by the Lenders, the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loan;providedthat (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of thisSection 2.12(d)shall not be construed to apply to any payment made by Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loan to any assignee or Participant, other than to Borrower or any Affiliate thereof (as to which the provisions of thisSection 2.12(d)shall apply), provided further that no Lender shall be required to purchase a participation from a Lender rejecting its option to receive prepayments under Section 2.06(b) to the extent disproportionality results from the rejecting Lender’s election under Section 2.06(b).Each Loan Partyconsents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

 

(e)          Presumptions of Payment.Unless the Administrative Agent shall have received notice from Borrower prior to the date on which any payment is due to the Administrative Agent for account of the Lenders hereunder that Borrower will not make such payment, the Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount dueto them. In such event, if Borrower has not in fact made such paymentwithin one (1) Business Day after such due date, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

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(f)          Certain Deductions by the Administrative Agent. If any Lender shall fail to make any payment required to be made by it pursuant toSections 2.03,2.12e)or10.03c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

 

Section 2.13         Change of Lending Office. If any Lender requests compensation underSection 2.09, or if Borrower is required to pay any additional amount to any Lender or any Governmental Authority for account of any Lender pursuant toSection 2.11then such Lender shall (i) file any certificate or document reasonably requested in writing by Borrower and/or (ii) use reasonable efforts to designate a differentLending Officefor funding or booking its Loan hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the sole judgment of such Lender exercised in good faith, such designation or assignment (x) would eliminate or reduce amounts payable pursuant toSection 2.09or2.11, as the case may be, in the future and (y) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any material respect. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

Section 2.14        Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Financing Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Financing Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a)          the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

 

(b)          the effects of any Bail-In Action on any such liability, including, if applicable:

 

(i)          a reduction in full or in part or cancellation of any such liability;

 

(ii)         a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Financing Document; or

 

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(iii)        the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.

 

Section 2.15         Reimbursement Obligations under Lender Credit Support Documents. For the avoidance of doubt, notwithstanding anything to the contrary contained herein or in any other Financing Document, Borrower’s obligation to make any payments in respect of any Deemed Loan (whether principal, interest, fees, premiums or otherwise) shall not be duplicative of any corresponding obligation to reimburse an obligation in respect of any Lender Credit Support Document giving rise to such Deemed Loan (whether principal, interest, fees, premiums or otherwise).

 

Section 2.16         Lender Joinder. Each of the parties hereto expect that, on or prior to the OpCo Tranche A Funding Date, one or more Persons shall accede to this Agreement as a Lender pursuant to one or more LenderJoinders delivered pursuant toSection 4.02(p), and each such Person shall thereafter perform, in accordance with the terms of this Agreement and the other Financing Documents, all of its respective obligations which by the terms of the Agreement are required to be performed by it as a Lender (including the obligations set forth inthisArticle II).

 

Article III

 

REPRESENTATIONS AND WARRANTIES

 

Each Loan Party represents and warrants to each Agent and the Lenders that (a)as of the Closing Date, (i) with respect to the representations and warranties set forth in Sections3.01(a),3.02,3.03,3.06(a),3.07,3.08,3.11,3.12,3.13,3.15,3.16(b),3.17,3.19,3.21,3.22,3.23,3.24,3.25,3.26,3.27and3.28(a)only and (ii) solely with respect to Borrower and Pledgor, and (b) as of any Funding Date and on any other date that the representations specified in thisArticle IIIare required to be made, with respect to all representations and warranties set forth in this Article III (other than the representations and warranties set forth inSections 3.06(a),3.12,3.22(b),3.23and3.28(a)), and with respect to all Loan PartiesFourth Amendment Effective Date:

 

Section 3.01        Due Organization, Etc.

 

(a)          Each Loan Party is a limited liability company or corporation, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Each Loan Party has all requisite limited liability company, corporate or other organizational power and authority to own or lease and operate its assets and to carry on its business as now conducted and as proposed to be conducted and each Loan Party is duly qualified to do business and is in good standing in each jurisdiction where necessary in light of its business as now conducted and as proposed to be conducted, except where the failure to so qualify could not reasonably be expected to be material and adverse to the Loan Parties or the Lenders. No filing, recording, publishing or other act by a Loan Party that has not been made or done is necessary in connection with the existence or good standing of such Loan Party.

 

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(b)          Pledgor is the Class A Member (as defined in the Borrower LLC Agreement) of Borrower, and all Capital Stock in Borrower is beneficially owned and controlled by Pledgor (other than the Class B Units and the Class C Units) free and clear of all Liens other than Permitted Liens.

 

(c)          Borrower is the sole member of OpCo Pledgor, and all Capital Stock in OpCo Pledgor is beneficially owned and controlled by Borrower free and clear of all Liens other than Permitted Liens.

 

Section 3.02        Authorization, Etc. 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 each of the Transaction Documents to which it is a party and to consummate each of the transactions contemplated herein and therein, and has taken all necessary corporate, limited liability company or other organizational action to authorize the execution, delivery and performance by it of each of the Transaction Documents to which it is a party. Each of the Transaction Documents to which any Loan Party is a party has been duly executed and delivered by such Loan Party and is in full force and effect and constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as enforcement may be limited (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) by implied covenants of good faith and fair dealing.

 

Section 3.03        No Conflict. The execution, delivery and performance by each Loan Party of each of the Transaction Documents to which it is a party and all other documents and instruments to be executed and delivered hereunder by it, as well as the consummation of the transactions contemplated herein and therein, do 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, 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, 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 (iv) 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.

 

Section 3.04        [Reserved]

 

Section 3.05        No Material Adverse Effect[Reserved]. Since the SPA Execution Date (as defined in the OpCo Senior Credit Agreement), no event, change or condition has occurred that has caused, or could be reasonably expected to cause, a Material Adverse Effect.

 

Section 3.06        Litigation. Except as set forth on Schedule 3.06,

 

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(a)          There is no pending or, to the knowledge of any Authorized Representative of any Loan Party, threatened (in writing) litigation, investigation, action or proceeding of or before any court, arbitrator or Governmental Authority (in the case of any of the foregoing not involving the Loan Parties, to the knowledge of any Authorized Representative of any Loan Party) (i) seeking to restrain or prohibit the consummation of the transactions contemplated by the Transaction Documents, (ii) purporting to affect the legality, validity or enforceability of any of the Transaction Documents or (iii) that affects the Project or any material part of the Site, which in any such case (either individually or in the aggregate) under the foregoing clauses (i) through (iii) could reasonably be expected to have a Material Adverse Effect.; and

 

(b)          As of any date on whichthe representation and warranty set forth in thisSection 3.06(b)is madeFourth Amendment Effective Date, there is no pending or, to the knowledge of any Authorized Representative of any Loan Party, threatened (in writing) litigation, investigation, action or proceeding of or before any court, arbitrator or Governmental Authority (in the case of any of the foregoing not involving the Loan Parties, to the knowledge of any Authorized Representative of any Loan Party) (i) seeking to restrain or prohibit the consummation of the transactions contemplated by the Transaction Documents, (ii) purporting to affect the legality, validity or enforceability of any of the Transaction Documents or (iii) that affects the Project or any material part of the Site, which in any such case (either individually or in the aggregate) under the foregoing clauses (i) through (iii) could reasonably be expected to have a Material Adverse Effect.

 

Section 3.07        Authorizations; Environmental Matters. Except as set forth onSchedule 3.07:

 

(a)          each Loan Party is now and has been in compliance with all applicable Environmental Laws, except as would not be reasonably expected to have a Material Adverse Effect;

 

Section 3.07        (b)[Reserved];

 

(c)          there are no past, pending or, to the knowledge of an Authorized Representative of any Loan Party, threatened, Environmental Claims asserted against any Loan Party, including any consent decrees, orders, settlements or other agreements relating to compliance or liability with Environmental Laws, except as would not be reasonably expected to have a Material Adverse Effect;

 

(d)          there has been no Release or threat of Release of Hazardous Materials at, on, from or under any real property currently or formerly owned, leased or operated by any Loan Party, except in each case in compliance with Environmental Laws, except as would not be reasonably expected to have a Material Adverse Effect;

 

(e)          there have been no material environmental investigations, studies, audits, reviews or other analyses conducted by any Loan Party which disclose any potential basis for Environmental Claims, except as would not be reasonably expected to have a Material Adverse Effect; and

 

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(f)          each Loan Party has made available copies of all significant reports, correspondence and other documents in its possession, custody or control regarding compliance by any of the Loan Parties, or potential liability of any of the Loan Parties under Environmental Laws or Authorizations required under Environmental Laws, except as would not be reasonably expected to have a Material Adverse Effect.

 

ThisSection 3.07sets forth the only representations and warranties of the Loan Parties related to any Environmental Claims or any other environmental matters.

 

Section 3.08         Compliance with Laws and Obligations. SubjecttoSection 3.07, each Loan Party is in compliance with all Applicable Laws applicable to the Loan Parties, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect..

 

Section 3.08        Section 3.09[Reserved].

 

Section 3.10        Licenses

 

Section 3.09        [Reserved].

 

(a)          Each Loan Partyowns, or is licensed to use, all patents, trademarks, permits, proprietary information and knowledge, technology, copyrights, licenses, franchises and formulas, or rights with respect thereto and all other intellectual property, necessary for its business and that are material to the performance by it of its obligations under the Transaction Documents to which it is a party, in each case, as to which the failure of such Loan Party to so own or be licensed could reasonably be expected to have a Material Adverse Effect, and the use thereof by such Loan Party does not infringe in any material respect upon the rights of any other Person.

 

(b)          Each Loan Partyhas obtained all necessary licenses, easements and access rights required for the Project the absence of any of which could reasonably be expected to have a Material Adverse Effect as set forth onSchedule 3.10

 

Section 3.10        [Reserved].

 

Section 3.11        Taxes.

 

(a)          Each Loan Party has timely filed or caused to be filed all material tax returns and reports required to have been filed by it and has paid or has caused to be paid all material taxes required to have been paid by it (whether or not shown as due on any tax returns), other than taxes that are being contested in accordance with the Permitted Contest Conditions and to the extent the failure to do so could reasonably be expected to result in a Material Adverse Effect;

 

(b)          Each Loan Party is properly treated as a disregarded entity or a partnership for U.S. federal income tax purposes and has not filed an election pursuant to Treasury Regulation Section 301.7701- 3(c) to be treated as an association taxable as a corporation; and

 

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(c)          No Property held by any Loan Party is the subject of any temporary tax abatement or any other temporary tax reduction.

 

Section 3.12        Full Disclosure; Projections.

 

(a)          None of the written reports, financial statements, certificates or other written information (other than Projections and information of a general economic or industry nature) furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the negotiation and execution of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished), taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make such statements therein, in the light of the circumstances under which they were made, not materially misleading; provided, that with respect to the financial information described inSection 4.02(q)(ii)of the OpCo Senior Credit Agreement, the representation and warranty set forth in thisSection 3.12(a)is solely given to the knowledge of Borrower.

 

(b)          Each Loan Party’s sole representation with respect to information consisting of statements, estimates, forecasts and projections regarding the Loan Parties and the future performance of the Project or other expressions of view as to future circumstances (including the Financial Model, the Operating Budget, the Construction Budget, the Construction Schedule, and estimates, budgets, forecasts, financial information and “forward-looking statements” that have been made available to any Secured Party by or on behalf of any Loan Party or any of its representatives or Affiliates (collectively, “Projections”)), shall be that such Projections have been prepared in good faith based upon assumptions believed to be reasonable at the time of preparation thereof and are consistent in all material respects with the Financing Documents and the Project Documents as of the time of preparation thereof; provided that it is understood and acknowledged that such Projections are based upon a number of estimates and assumptions and are subject to business, economic and competitive uncertainties and contingencies, that actual results during the period or periods covered by any such Projections may differ from the projected results and such differences may be material and that, accordingly, no assurances are given and no representations, warranties or covenants are made that any of the assumptions are correct, that such Projections will be achieved or that the forward-looking statements expressed in such Projections will correspond to actual results.

 

Section 3.13        Senior Obligations. Each Loan Party’s obligations under the Financing Documents are the direct and unconditional general obligations of such Loan Party and, on and after the Initial FundingFourth Amendment Effective Date, rank senior in priority of payment and in all other respects with all other present or future unsecured and secured Indebtedness of such Loan Party.

 

Section 3.14        Solvency. Each Loan Party is Solvent.

 

Section 3.15        Regulatory Restrictions on the Loan. No Loan Party is an “investment company” within the meaning of the Investment Company Act of 1940 of the United States (including the rules and regulations thereunder), as amended.

 

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Section 3.16        Title; Security Documents.

 

(a)          Each Loan Party owns and has good, legal and marketable title to all material properties and assets, in each case purported to be covered by the Security Documents to which it is party free and clear of all Liens other than Permitted Liens.

 

(b)          The provisions of the Security Documents to which any Loan Party is a party that have been delivered on or prior to the date this representation is made are (and each other Security Document to which any Loan Party will be a party when delivered thereafter will be), effective to create, in favor of the Collateral Agent for the benefit of the Secured Parties, a legal, valid and enforceable first-priority Lien on and security interest in all of the Collateral purported to be covered thereby, and all necessary recordings and filings have been (or, in the case of such other Security Documents, will be) made in all necessary public offices, and all other necessary and appropriate action has been (or, in the case of such other Security Documents, will be) taken, so that the security interest created by each Security Document is a first-priority perfected Lien on and security interest in all right, title and interest of such Loan Party in the Collateral purported to be covered thereby, prior and superior to all other Liens other than Permitted Liens.

 

Section 3.17        ERISA.

 

(a)          No ERISA Event has occurred or is reasonably expected to occur which has or could reasonably be expected to have a Material Adverse Effect. Each Pension Plan has complied in all material respects with the applicable provisions of ERISA and the Code. No termination of a Pension Plan has occurred resulting in any liability that has remained underfunded and no Lien against any Loan Party or any of its ERISA Affiliates in favor of the PBGC or a Pension Plan has arisen during the five-year period prior to the date hereof. None of the Loan Parties or any of its ERISA Affiliates has incurred any liability in an amount which has or could reasonably be expected to have a Material Adverse Effect on account of a complete or partial withdrawal from a Multiemployer Plan.

 

(b)          None of the Loan Party has incurred any obligation which has or could reasonably be expected to have a Material Adverse Effect on account of the termination or withdrawal from any Foreign Plan.

 

Section 3.18        Insurance[Reserved]. All insurance policies required to be obtained by the Loan Parties pursuant toSection 5.06have been obtained and are in full force and effect as required underSection 5.06and all premiums then due and payable thereon have been paid in full. No Loan Parties has received any notice from any insurer that any insurance policy has ceased to be in full force and effect or claiming that the insurer’s liability under any such insurance policy can be reduced or avoided..

 

Section 3.19        Single-Purpose Entity.

 

(a)          Each of Pledgor and Borrower is a single purpose entity created for purposes of the transactions contemplated hereby and the performance of its obligations under the Transaction Documents to which it is a party and, in each case, activities related thereto or incident thereto, and has not engaged in any business other than the performance of its obligations under the Transaction Documents to which it is a party and, in each case, activities related thereto, and neither Pledgor nor Borrower has any obligations or liabilities other than those arising out of or relating to the conduct of such business or activities related or incidental thereto.

 

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(b)          NoExcept where the failure to do so could not reasonably be expected to result in a Material Adverse Effect, no Loan Party has (i) commingled its assets with any other Loan Party or any other Person, (ii) used its assets to pay the obligations of any other Loan Party or any other Person or (iii) held itself out to third parties as anything other than an entity legally separate from each other Loan Party and any other Person.

 

Section 3.20        Use of Proceeds. The proceeds the Loan have been used solely in accordance with, and solely for the purposes contemplated by,Section 5.13. No part of the proceeds of any Loan and other extensions of credit hereunder will be used, either directly or indirectly, by any Loan Party to purchase or carry any Margin Stock (as defined in Regulation U) or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or for any purpose that entails a violation of any of the regulations of the Board.

 

Section 3.21        Membership Interests and Related Matters.

 

(a)          Other than set forth on Schedule 3.21(a), as of the ClosingFourth Amendment Effective Date, (i) no Loan Party has any Subsidiaries and no Loan Party owns any equity interest in, or otherwise Controls any Voting Stock of or have any ownership interest in, any Person and (ii) no OpCo Loan Party has any Subsidiaries and no OpCo Loan Party owns any equity interest in, or otherwise Control any Voting Stock of or have any ownership interest in, any Person.

 

(b)          All of the membership interests in each Loan Party have been duly authorized and validly issued in accordance with its Organizational Documents, are fully paid and non-assessable and free and clear of all Liens other than Permitted Liens. Other than as set forth on Schedule 3.21(b) as of the Fourth Amendment Effective Date, no Loan Party has outstanding any securities convertible into or exchangeable for any of its membership interests in or any rights to subscribe for or to purchase, or any warrants or options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any character relating to any such membership interests (except as expressly provided for or permitted herein or in the Security Documents).

 

(c)          There are no agreements or understandings (other than the Financing Documents and the Borrower LLC Agreement) (i) to which Borrower is a party with respect to the voting, sale or transfer of any shares of Capital Stock of Borrower or restricting the transfer or hypothecation of any such shares or (ii) with respect to the voting, sale or transfer of any shares of Capital Stock of Borrower or restricting the transfer or hypothecation of any such shares.

 

Section 3.22        Permitted Indebtedness; Investments.

 

(a)          No Loan Party has created, incurred, assumed or suffered to exist any Indebtedness, other than Permitted Indebtedness.

 

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(b)          As of the Closing Date, all Indebtedness of theOpCoLoan Parties incurred pursuant toSection 6.02(b)is listed onSchedule 3.22(b).

 

(c)          None of the Loan Parties has made any advance, loan or extension of credit to, or made any acquisition or Investment (whether by way of transfers of property, contributions to capital, acquisitions of stock, securities, evidences of Indebtedness or otherwise) in, or purchase of any stock, bonds, notes, debentures or other securities of, any other Person, other than as permitted underSection 6.04.

 

Section 3.23        Agreements with Affiliates.As of the Closing Date,Schedule 3.23sets forth any and all agreements, transactions or series of related transactions among, on one hand, one or more Loan Parties, and on the other hand, one or more Affiliates of a Loan Party (other than the Loan Parties).

 

Section 3.24        No Bank Accounts. No Loan Party maintains, or has caused the Depositary Bank or any other Person to maintain, any accounts other than theAccountsand any other account permitted under the Financing Documents.

 

Section 3.25        No Default orEvent of Default; No OpCo Senior Default or OpCo SeniorEvent of Default. No Default or Event of Default has occurred and is continuing.No OpCo Senior Default or OpCo Senior Event of Default has occurred and is continuing.

 

Section 3.26        Foreign Assets Control Regulations.

 

(a)          None of the Loan Parties, and none of their respective officers or directors, or, to any of the Loan Parties’ knowledge, their respective Affiliates or agents (i) is a Sanctioned Person; or (ii) engages in any dealings or transactions in or with a Sanctioned Country or that are otherwise prohibited by Sanctions.

 

(b)          Each of the Loan Parties has implemented and currently maintains policies and procedures to ensure compliance with Sanctions, Anti-Corruption Laws, and Anti-Money Laundering Laws.

 

(c)          Each of the Loan Parties and their respective officers, directors, employees and, to the Loan Parties’ knowledge, agents are in compliance with Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions.

 

(d)          No part of the proceeds of the Loans will be used, directly or indirectly (i) in violation of the FCPA, Anti-Money Laundering Laws or Sanctions or (ii) to offer or make payments or to take any other action that would constitute a violation, or implicate any Lender, Administrative Agent, Collateral Agent or their respective Affiliates in a violation, of Anti-Corruption Lawsor applicable Sanctions.

 

(e)          Each of the Loan Parties has disclosed all facts known to it regarding (a) all claims, damages, liabilities, obligations, losses, penalties, actions, judgment, and/or allegations of any kind or nature that are asserted against, paid or payable by such Person, any of its Affiliates or any of its representatives in connection with non-compliance with Anti-Corruption Laws, Sanctions or Anti-Money Laundering Laws by such Person, and (b) any investigations involving possible non-compliance with Anti-Corruption Laws, Sanctions or Anti-Money Laundering Laws by such Person or such Affiliate or such representative. No proceeding by or before any Governmental Authority involving any Loan Party with respect to Anti-Corruption Laws, Sanctions or Anti-Money Laundering Laws is pending or, to the knowledge of the Loan Parties, threatened.

 

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Notwithstanding anything to the contrary in thisSection 3.26, the representation set forth in thisSection 3.26shall be given with respect to Project Company only for the period after the Acquisition.

 

Section 3.27        Commercial Activity; Absence of Immunity. The Loan Parties are subject to civil and commercial law with respect to their obligations under the Transaction Documents, and the making and performance of the Transaction Documents by the Loan Parties constitute private and commercial acts rather than public or governmental acts. The Loan Parties are not entitled to any immunity on the ground of sovereignty or the like from the jurisdiction of any court or from any action, suit, setoff or proceeding, or the service of process in connection therewith, arising under the Financing Documents.

 

Section 3.22        Section 3.28OpCo Loan Parties Representation and Warranties(b).

 

(a)          As of the Closing Date, the representations and warranties of each OpCo Loan Party set forth in the OpCo Senior Financing Documents for the OpCo Senior Closing Date shall be true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects) on and as of the Closing Date (unless stated therein to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).As of each Fundingthe Fourth Amendment Effective Date, the representations and warranties of each OpCo Loan Party set forth in the OpCo Senior Financing Documents for Funding Dates (as such term is defined in the OpCo Senior Credit Agreement) 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 shall be true and correct in all respects) on and as of such Funding Date (unless stated therein to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).

 

Section 3.29        OpCo Senior Financing Documents. Except as may have been agreed by the Administrative Agent in writing, acting at the direction of the Required Lenders, none of the OpCo Senior Financing Documents has been modified, supplemented, amended, amended and restated or otherwise modified and no consents, approvals or waivers have been sought or granted under any of the OpCo Senior Financing Documents.

 

Article IV

 

CONDITIONS

 

Section 4.01        Conditions to the Closing Date. The occurrence of the Closing Date, the effectiveness of this Agreement and the obligations of Agent and each Lender hereunder are subject to the receipt by the Administrative Agent (except as set forth otherwise below) of each of the following documents, and the satisfaction of the conditions precedent set forth below, each of which must be satisfied to the reasonable satisfaction of the Administrative Agent and each Lender (unless waived in accordance withSection 10.02):

 

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(a)          Execution of Financing Documents; Delivery of OpCo Senior Financing Documents.

 

(i)          The Financing Documents ((x) including the HoldCo Lender Backstop Agreement but (y) excluding a Control Agreement in respect of the Accounts) shall have been duly executed and delivered by the Persons intended to be parties thereto and shall be in full force and effect.

 

(ii)         The Administrative Agent shall have received executed copies of each of (i) the OpCo Senior Financing Documents and (ii) the Borrower LLC Agreement.

 

(b)          Corporate Documents.The following documents, each certified as of the Closing Date as indicated below:

 

(i)          copies of the Organizational Documents, together with any amendments thereto, of eachLoan Party and OpCoLoan Party and a certificate of good standing or its equivalent (if any) for the applicable jurisdiction for each such party (in each case such good standing certificate or its equivalent dated no more than ten (10) Business Days prior to the Closing Date);

 

(ii)         an Officer’s Certificate of eachLoan Party and OpCoLoan Party dated as of the Closing Date, certifying:

 

(A)         that attached to such certificate is a correct and complete copy of the Organizational Documents referred inclause (i)above for such Person;

 

(B)         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, and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect;

 

(C)         that the certificate of incorporation, certificate of formation, charter or other Organizational Documents (as the case may be) referred inclause (i)above for such Person has not been amended since the date of the certification furnished pursuant toclause (i)above;

 

(D)         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

 

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(E)         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.

 

(c)          Reports of Consultants.The Administrative Agent shall have received copies of each consultant report delivered to the OpCo Senior Administrative Agent underSection 4.01(c)of the OpCo Senior Credit Agreement.

 

(d)          Representations and Warranties. The representations and warranties of each Loan Parties set forth in the Financing Documents shall be true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects) on and as of the Closing 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). The representations and warranties of each OpCo Loan Party set forth in the OpCo Senior Financing Documents shall be true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects) on and as of the OpCo Senior Closing Date (unless stated therein to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).

 

(e)          Initial Material Project Documents. The Administrative Agentand each Lendershall havereceived (i) a copy of the SPA and (ii)copies of each Initial Material Project Document (other than the Pre-Acquisition Material Project Documents (as each such term is defined in the OpCo Senior Credit Agreement)), and any amendments thereto, together with a certificate by an Authorized Representative of Borrower and the OpCo Borrower certifying as of the Closing Date that each such copy of the SPA and each such Initial Material Project Document is a correct and complete copy thereof and the SPA (including all waivers, consents, amendments and other modifications thereof) and each such Initial Material Project Document (including all waivers, consents, amendments and other modifications thereof) is in full force and effect.

 

(f)          [Reserved]

 

(g)          Financial Model, Construction Budget and Construction Schedule.The Administrative Agentand each Lendershall have received copies of each of the Financial Model, the Construction Budget and the Construction Schedule delivered to the OpCo Senior Administrative Agent under the OpCo Senior Credit Agreementand each such document shall be in form and substance reasonably satisfactory by the Administrative Agent.

 

(h)          Regulatory Information. Each Lender shall have received (i) all documentation and other written information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, reasonably requested by them at least five (5) Business Days prior to execution of this Agreement and (ii) the Beneficial Ownership Regulation (including a Beneficial Ownership Certification).

 

(i)          No Default or Event of Default; No Material Adverse Effect.

 

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(i)          No Default or Event of Default shall have occurred and be continuing on the Closing Date.

 

(ii)         No OpCo Senior Default or OpCo Senior Event of Default shall have occurred and be continuing on the Closing Date.

 

(j)          Collateral Perfection Matters.The Administrative Agent shall have received:

 

(i)          appropriately completed UCC financing statements (Form UCC-l), which have been duly authorized for filing by the appropriate Person, naming the Loan Parties as debtors and Collateral Agent as secured party, in form appropriate for filing under the UCC of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Security Documents, covering the applicable Collateral;

 

(ii)         copies of UCC, judgment lien, tax lien and litigation lien search reports, which reports will be dated a recent date reasonably acceptable to the Administrative Agent, listing all effective financing statements that name each Loan Party as debtor and that are filed in the jurisdictions in which the UCC-1 financing statements will be filed in respect of the Collateral, none of which shall cover the Collateral except to the extent evidencing Permitted Liens;

 

(iii)        appropriately completed copies of all other recordings and filings of, or with respect to, the Security Documents as may be reasonably requested by Collateral Agent and necessary to perfect the security interests purported to be created by the Security Documents;

 

(iv)        evidence that the Collateral Agent shall have received the certificates representing the shares of Capital Stock that are pledged pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly Authorized Representative of Pledgor or Borrower, as applicable; and

 

(v)         evidence that all other actions reasonably requested by Collateral Agent and necessary to perfect and protect the security interests purported to be created by the Security Documents entered into on or prior to the Closing Date have been taken immediately prior to the occurrence of the Closing Date.

 

(k)          Certain Agreements; Staffing Plan; Etc. The Administrative Agent shall have received copies of each agreement and plan delivered to the OpCo Senior Administrative Agent underSection 4.01(k)of the OpCo Senior Credit Agreement.

 

(l)          Security Documents. The security interests in and to the Collateral as of the Closing Date intended to be created under the Security Documents in effect as of the Closing Date shall have been created in favor of the Collateral Agent for the benefit of the Secured Parties, are in full force and effect and the necessary notices, consents, acknowledgments, filings, registrations and recordings to preserve, protect and perfect the security interests in such Collateral have been made immediately prior to the occurrence of the Closing Date such that the security interests granted in favor of the Collateral Agent for the benefit of the Secured Parties are filed, registered and recorded and will constitute a first priority, perfected security interest in such Collateral free and clear of any Liens, other than Permitted Liens, and all related recordation, registration and/or notarial fees of such Collateral have been paid to the extent required.

 

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(m)          [Reserved].

 

(n)          [Reserved].

 

(o)          VCOC Matters. The Administrative Agent shall have received copies of the board observer rights agreements delivered to the OpCo Senior Administrative Agent underSection 4.01(m)(ii) of the OpCo Senior Credit Agreement.

 

(p)          Establishment of the Accounts. The Administrative Agent shall have received evidence that each of theAccountsrequired under this Agreement has been established in accordance with the terms thereof.

 

(q)          [Reserved].

 

(r)          [Reserved].

 

(s)          [Reserved].

 

(t)          [Reserved].

 

(u)          Officer’s Certificate. The Administrative Agent shall have received an Officer’s Certificate of each Loan Party, dated as of the Closing Date, certifying that each of the conditions set forth in thisSection 4.01have been satisfied (other than with respect to whether any document, event or circumstance is satisfactory or otherwise acceptable to the Administrative Agent or any Lender or Agent).

 

(v)         OpCo Senior Credit Agreement Deliverables. Without duplication of any other deliverable under this Section 4.01, the Administrative Agent shall have received each of the deliverables delivered to the OpCo Senior Administrative Agent underSection 4.01of the OpCo Senior Credit AgreementClosing Date occurred on May 4, 2020.

 

Section 4.02         Conditions toEach Funding Date. The occurrence of eachthe Funding Date and each Lender’s obligations to make the Loans pursuant to Section 2.01(other than Deemed Loans) are subject to the receipt by the Administrative Agent (except as set forth otherwise below) of each of the following documents, and the satisfaction of the conditions precedent set forth below, each of which must be satisfied to the reasonable satisfaction of the Administrative Agent (unless waived in accordance with Section 10.02):

 

(a)          Borrowing Request. The Administrative Agent shall have received a Borrowing Request in accordance withSection 2.01, and the amount of such Borrowing Request shall not exceed the next ninety (90) days’ worth of anticipated Project Costs.

 

(b)          Existence and Good Standing. Each of the Loan Parties shall exist and be in good standing under the laws of the State of Delaware.

 

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(c)          Representations and Warranties. The representations and warranties of each Loan Parties set forth in the Financing Documents shall be true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects) on and as of such Funding 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). The representations and warranties of each OpCo Loan Party set forth in the OpCo Senior Financing Documents for Funding Dates (as such term is defined in the OpCo Senior Credit Agreement) shall be true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects) on and as of such Funding Date (unless stated therein to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).

 

(d)          No Default or Event of Default; No Material Adverse Effect.

 

(i)          No Default or Event of Default shall have occurred and be continuing on such Funding Date.

 

(a)          (ii)No OpCo Senior Default or OpCo Senior Event of DefaultFourth Amendment Effective Date. The Fourth Amendment Effective Date shall have occurredand be continuing on such Funding Date.

 

(iii)        As of each Funding Date (other than the Initial Funding Date), since the Initial Funding Date, there shall not have been any event or series of events which has had or could reasonably be expected to have a Material Adverse Effect.

 

(e)          Equity Kicker. In connection with each Funding Date, (i) such Lender (or the HoldCo Lender Equity Owners Affiliated with such Lender) shall have been granted Class C Units on the terms set forth in the Borrower LLC Agreement (such Class C Units, the “HoldCo Equity Kicker”) so that such Lender (or its Affiliated HoldCo Lender Equity Owners) holds a proportion of Class C Units (relative to all Class C Units) equal to the proportion of Loans of such Lender (relative to all Loans then outstanding) (and, if required under the Borrower LLC Agreement, such Lender shall sign a joinder to such agreement), (ii) such Lender and Borrower shall have agreed in writing as to the portion of such Loan allocated to the purchase of the corresponding HoldCo Equity Kicker as required pursuant toSection 2.01(e)and (iii) if the Borrower LLC Agreement has been amended since the Closing Date, such amendment shall be in form reasonably satisfactory to the Required Lenders.

 

(f)          Application of Prior Loans. Borrower shall have delivered to the Administrative Agent evidencereasonablysatisfactory to the Administrative Agent that amounts withdrawn from the Construction Account prior to such Funding Date have been applied (or have been committed to be applied) to pay Project Costs.

 

(g)          Deposits into Construction Account. Other than the Initial Funding Date, Borrower shall have delivered to the Administrative Agent evidencereasonablysatisfactory to the Administrative Agent that allpriorLoanproceeds have been deposited into the Construction Account.

 

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(h)          Fees and Expenses. Borrower has arranged for payment on such Funding Date (including through the application of Loan proceeds on such Funding Date) of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.

 

(i)          Initial Funding Date. Solely in respect of the Initial Funding Date,

 

(i)          [Reserved];

 

(ii)         the Administrative Agent shall have received an Officer’s Certificate of each Loan Party, dated as of the Initial Funding Date, certifying that each of the conditions set forth in thisSection4.02have been satisfied(other than with respect to whether any document, event or circumstance is satisfactory or otherwise acceptable to the Administrative Agent or any Lender or Agent);

 

(iii)        the Administrative Agentand each Lendershall have received the Funds Flow Memorandum;

 

(iv)        the Administrative Agentand each Lendershall have received an unaudited consolidated pro forma balance sheet of Borrower, dated as of the Initial Funding Date;

 

(v)         eachLendershall have received a solvency certificate of the chief financial officer or president of Borrower, demonstrating that the Loan Parties are, on a consolidated basis, and after giving effect to the incurrence of all Indebtedness, will be, Solvent.

 

(j)          [Reserved].

 

(k)          Notes; CUSIP. Each Lender that has requested a Note or Notes, as applicable, prior to such Funding Date pursuant to Section 2.05(b) shall have (i) received a duly executed Note or Notes, as applicable, dated the applicable Funding Date, payable to such Lender in a principal amount equal to such Lender’s Loan and (ii) a private placement number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) with respect to such Notes.

 

(l)          Authorizations. All Authorizations set forth in Part I of Schedule 3.04 to the OpCo Senior Credit Agreement (i) have been duly obtained and validly issued, (ii) are in full force and effect and not subject to any pending or, to the knowledge of any Loan Party or OpCo Loan Party threatened, appeal, (iii) are issued to, assigned to, or otherwise assumed by, an OpCo Loan Party (or such Person is entitled to the benefit thereof), (iv) are not subject to any current legal proceeding to which any Loan Party or OpCo Loan Party is a party, (v) are free from any unsatisfied condition the failure of which to satisfy could reasonably be expected to have a Material Adverse Effect and (vi) there is no reason to believe that any such Authorization may be withdrawn, cancelled, varied, suspended or revoked.

 

(m)          Debt Service Reserve Account. The Debt Service Reserve Account shall have been funded in an amount equal to or greater than the Debt Service Reserve Funding Amount.

 

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(n)          Approval from Senior Lenders. The Administrative Agent shall have received a copy of a withdrawal certificate that relates to a Control Agreement to which the Construction Account is subject, countersigned by the OpCo Senior Administrative Agent, that irrevocably authorizes the disbursement from the Construction Account of all Loans described in the Borrowing Request with respect to such Funding Date.

 

(o)          Senior Commitments Fully Committed. The sum of (i) any remaining OpCo Senior Commitments which are in full force and effective plus (ii) all outstanding OpCo Senior Loans equals an amount not less than $300,000,000.

 

(p)          Lender Joinders. The Administrative Agent shall have received (x) one or more executed Lender Joinders providing for additional Commitments in an aggregate amount at least equal to $7,050,000 and (y) a joinder in the form of Exhibit A attached to the HoldCo Lender Backstop Agreement from each of the Lenders party to such Lender Joinders.

 

(q)          Acquisition. Solely in respect of the initial Funding Date:

 

(i)          The Acquisition shall have been consummated in accordance with the terms of the SPA simultaneously with the occurrence of the OpCo Tranche A Funding Date and the incurrence of the borrowing, without giving any amendments, waivers or other modifications to (or consent under) the SPA that are adverse to the Lenders and that have not been approved by the Lenders.

 

(ii)         Each of the conditions set forth in Article VIII of the SPA shall have been satisfied to the reasonable satisfaction of the Administrative Agent, and a copy of all documents and other deliverables referenced therein shall have been provided to the Administrative Agent.

 

(iii)        Eachof the representations and warranties set forth in Article IV of the SPA that are material to the interests of the Lenders are, to the knowledge of any Authorized Representative of Borrower, true and correct in all material respects (except where already qualified by materiality or Material Adverse Effect or similar qualifier, in which case, such representations and warranties are true and correct in all respects);providedthat if any such representation or warranty relates solely to an earlier date, then such representation or warranty shall be true and correct in all material respects as of such earlier date.

 

(r)          Officer’s Certificate. The Administrative Agent and each Lender shall have received an Officer’s Certificate of each Loan Party, dated as of such Funding Date, certifying that each of the conditions set forth in thisSection 4.02have been satisfied.

 

Section 4.03       Conditions to Each Disbursement from the Construction Account. The occurrence of each disbursement from the Construction Account(the date of each such disbursement, a “Disbursement Date”), are subject to the receipt by the Administrative Agentofthe items received by the OpCo Senior Administrative Agent pursuant toSection 4.03of the OpCo Senior Credit Agreement which, to the extent any such disbursement is made up of any Loan proceeds, shall be in form and substance satisfactory to the Administrative Agentand each Lender(unless waived in accordance withSection 10.02).

 

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Article V

 

AFFIRMATIVE COVENANTS

 

Each Loan Party hereby agrees that (i)from and after the Closing Date and prior to the OpCo Tranche A Funding Date, to the extent applicable (it being acknowledged and agreed that, prior to the OpCo Tranche A Funding Date, the Acquisition has not occurred, Project Company is not an OpCo Loan Party, and neither OpCo Borrower nor OpCo Holdings have rights to the Site or the Project or under any Material Project Document) (other than any Material Project Document to which OpCo Borrower is a party on the Closing Date) and (ii) on the OpCo Tranche A Funding Date (following the Acquisition) and thereafterFourth Amendment Effective Date, in all respects:

 

Section 5.01        Corporate Existence; Etc. Each Loan Party shall, and Borrower shall cause each OpCo Loan Party to, at all times preserve and maintain in full force and effect (a)subject to the proviso ofSection 6.07(b), its existence as a corporation or a limited liability company, as applicable, in good standing under the laws of the jurisdiction of its organization and (b) except as would not reasonably be expected to cause a Material Adverse Effect,its qualification to do business and its good standing in each jurisdiction in which the character of properties owned by it or in which the transaction of its business as conducted or proposed to be conducted makes such qualification necessary, in each case of clause (a) and clause (b), except to the extent that the failure to do so would not reasonably be expected to cause a Material Adverse Effect.

 

Section 5.02        Conduct of Business. EachExcept to the extent that the failure to do so would not reasonably be expected to cause a Material Adverse Effect, each Loan Party shall, and Borrower shall cause each OpCo Loan Party to, operate, maintain and preserve or cause to be operated, maintained and preserved, the Site in accordance in all material respectswith the requirements of the Material Project Documents to which it is a party and in compliance, in all material respects, with Applicable Laws and Authorizations by Governmental Authorities and the terms of its insurance policies.

 

Section 5.03        Compliance with Laws and Obligations. Each Loan Party shall, and Borrower shall cause each OpCo Loan Party to, comply in all material respectswith applicable Environmental Laws, including occupational health and safety regulations and all other Applicable Laws and Authorizations. Each Loan Party shall, and Borrower shall cause each OpCo Loan Party to, comply with and perform its respective contractual obligations in all material respects, and enforce against other parties their respective contractual obligations in all material respects, under each Material Project Document to which it is a party. Each Loan Party shall, and Borrower shall cause each OpCo Loan Party to, comply with and not violate applicable Sanctions, Anti-Money Laundering Laws, the FCPA or any other Anti-Corruption Laws or undertake or cause to be undertaken any Anti-Corruption Prohibited Activity, in each case, except to the extent that such non-compliance so would not reasonably be expected to cause a Material Adverse Effect.

 

Section 5.04        Governmental Authorizations. EachExcept as could not be reasonably expected to cause a Material Adverse Effect, each Loan Party shall, and Borrower shall cause each OpCo Loan Party to: (a) obtain and maintain in full force and effect (or where appropriate, promptly renew in a timely manner), or cause to be obtained and maintained in full force and effect all Authorizations set forth on Schedule 3.04 of the OpCo Senior Credit Agreement (including all Authorizations required by Environmental LawLaws) required under any Applicable Law for the Project and such OpCo Loan Party’s business and operations generally, in each case, at or before the time the relevant Authorization becomes necessary for such purposes, (b) obtain and maintain in full force and effect (or where appropriate, promptly renew in a timely manner), or cause to be obtained and maintained in full force and effect all Authorizations set forth required under any Applicable Law for each Loan Party’s business and operations generally, in each case, at or before the time the relevant Authorization becomes necessary for such purposes and (c) preserve and maintain all other Authorizations required for the Project, in either case, in all material respects.

 

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Section 5.05        Maintenance of Title[Reserved].Each Loan Partyshall, and Borrower shall cause each OpCo Loan Party to, maintain (a) good title to the material property owned by such Loan Party and such OpCo Loan Party (as applicable) free and clear of Liens, other than Permitted Liens and OpCo Senior Permitted Liens, respectively; (b) legal and valid and subsisting leasehold interests to the material properties leased by such Loan Party and such OpCo Loan Party (as applicable), free and clear of Liens, other than Permitted Liens and OpCo Senior Permitted Liens, respectively; and (c) legal and valid possessory rights to the material properties possessed and not otherwise held in fee or leased by such Loan Party and such OpCo Loan Party..

 

Section 5.06        Insurance[Reserved].

 

(a)          Borrower shall cause each OpCo Loan Partyto maintain or cause to be maintained in all material respects on its behalf in effect at all times the types of insurance required pursuant toSchedule 5.06of the OpCo Senior Credit Agreement, in the amounts and on the terms and conditions specified therein and in accordance therewith.

 

(b)          Borrower shall cause each OpCo Loan Party to maintain or cause to be maintained the insurance required to be maintained pursuant to the Material Project Documents in accordance with the terms of the same.

 

(c)          Borrower shall cause Loss Proceeds of the insurance policies provided or obtained by or on behalf of the OpCo Loan Parties to be paid by the respective insurers directly to the OpCo Senior Extraordinary Receipts Account. Amounts in the OpCo Senior Extraordinary Receipts Account shall be applied in accordance withSection 5.29(f)of the OpCo Senior Credit Agreement.

 

Section 5.07        Keeping of Books.Each Loan Partyshall, and Borrower shall cause each OpCo Loan Party to, maintain an accounting and control system, management information system and books of account and other records, which together adequately reflect truly and fairly the financial condition of such Loan Party and such OpCo Loan Party and the results of operations in accordance with GAAP and all Applicable Laws.

 

Section 5.07        [Reserved].

 

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Section 5.08        Access to Records[Reserved].Each Loan Partyshall, and Borrower shall cause each OpCo Loan Party to permit (i) officers and designated representatives of the Administrative Agent to visit and inspect the Site accompanied by officers or designated representatives of such Loan Party and OpCo Loan Party and (ii) officers and designated representatives of the Administrative Agent to examine and make copies of the books of record and accounts of such Loan Party and OpCo Loan Party (providedthat such Loan Party and OpCo Loan Party shall have the right to be present) and discuss the affairs, finances and accounts of such Loan Party and OpCo Loan Party with the chief financial officer, the chief operating officer and the chief executive officer of such Loan Party and OpCo Loan Party (subject to reasonable requirements of safety and confidentiality, including requirements imposed by Applicable Law or by contract, provided the Loan Parties will use reasonable efforts to obtain relief from any contractual confidentiality restrictions that prohibit the Administrative Agent or any Lender from obtaining information), in each case, with at least three (3) Business Days advance notice to such Loan Party and OpCo Loan Party and during normal business hours of such Loan Party and OpCo Loan Party;providedthat, (i) such Loan Party and OpCo Loan Party shall not be required to reimburse the Administrative Agent for more than one (1) inspection per year as long as no Event of Default has occurred and is continuing and (ii) such visits by officers and designated representatives of the Administrative Agent shall not occur more frequently than twice per year as long as no Event of Default has occurred and is continuing.

 

Section 5.09        Payment of Taxes, Etc.

 

(a)          Each Loan Partyshall, and Borrower shall cause each OpCo Loan Party to, pay and discharge, before the same shall become delinquent: (i) all material taxes, assessments and governmental charges or levies imposed upon it or upon its property to the extent required under the Transaction Documentsand OpCo Senior Transaction Documentsto which such LoanParty or OpCo LoanParty is a party or under Applicable Law and(ii) all material lawful claims that, if unpaid, might become a Lien (other than a Permitted Lien of the type referenced inclause (a)of the definition of Permitted Lien) upon its property;providedthat such Loan Party shall not be required to pay or discharge any such tax, assessment, charge or claim for so long as such Loan Party satisfies the Permitted Contest Conditions in relation to such tax, assessment, charge or claim.

 

(b)          Each Loan Partyshall, and Borrower shall cause each OpCo Loan Party to, continue to be properly treated as a disregarded entity  or a partnership for U.S. federal income tax purposes and no Loan Party shall file an election pursuant to Treasury Regulation Section 301.7701-3(c) to be treated as an association taxable as a corporation.

 

Section 5.10        Financial Statements; Other Reporting Requirements.Each Loan Partyshall, or Borrower shall cause the OpCo Loan Parties to, furnish to the Administrative Agent:

 

(a) (i) commencing with the first full month after the Closing Date, as soon as available and in any event within forty five (45) days after the end of each month, (x) the monthly unaudited consolidated financial statements of the Loan Parties,(y) the monthly unaudited consolidated financial statements of the OpCo Loan Parties delivered to the OpCo Senior Administrative Agent under Section 5.10(a)(i) of the OpCo Senior Credit Agreement and (z) the other monthly reports of the OpCo Loan Partiesdelivered to the OpCo Senior Administrative Agent under Section 5.10(a)(ii) of the OpCo Senior Credit Agreement;

 

(b)          commencing with the first full fiscal quarter after the Closing Date, as soon as available and in any event within sixty (60) days after the end of each fiscal quarter, quarterly unaudited consolidated financial statements of the Loan Parties and the OpCo Loan Parties, including the unaudited consolidated balance sheet as of the end of such quarterly period and the related unaudited statements of income, retained earnings and cash flows for such quarterly period and for the portion of such fiscal year ending on the last day of such period, all in reasonable detail;

 

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(c)          commencing with fiscal year ending on December 31, 2020, as soon as available and in any event within one hundred fifty (150) days(or, in the case of the fiscal year ending on December 31, 2020, one hundred eighty (180) days)6after the end of each fiscal year, audited consolidated financial statements for such fiscal year for the Loan Parties and the OpCo Loan Parties, including therein the consolidated balance sheet as of the end of such fiscal year and the related statements of income, retained earnings and cash flows for such year, a comparison of actual performance of the Loan Parties and the OpCo Loan Parties with the projected performance set out in the Operating Budget for the relevant fiscal year and the respective directors’ and auditors’ reports, all in reasonable detail and accompanied by an audit opinion thereon by the Independent Auditor, which opinion shall state that said financial statements present fairly, in all material respects, the financial position of the Loan Parties and the OpCo Loan Parties, as the case may be, at the end of, and for, such fiscal year in accordance with GAAP;

 

(d)          within forty-five (45) days following the end of each fiscal quarter, a copy of the environmental, social and governance report provided to the OpCo Senior Administrative Agent in respect of the applicable fiscal quarter under Section 5.10(d)of the OpCo Senior Credit Agreement;

 

(e)          at the time of the delivery of the financial statements underSections5.10(a),(b)and(c)above, a certificate of an Authorized Representative of such Loan Party or OpCo Loan Party, as applicable (i) certifyingto the Administrative Agent and the Lendersthat such financial statements fairly present in all material respects the financial condition and results of operations of such Loan Party or OpCo Loan Party and its Affiliates on the dates and for the periods indicated in accordance with GAAP, subject, in the case of interim financial statements, to the absence of footnotes and normally recurring year-end adjustments and (ii) certifyingto the Administrative Agent and the Lendersthat no Event of Default, OpCo Senior Default or OpCo Senior Event of Default has occurred and is continuing, or if an Event of Default, OpCo Senior Default or OpCo Senior Event of Default has occurred and is continuing, a statement as to the nature thereof;

 

(f)          within thirty (30) days after each annual policy renewal date, a certificate of an Authorized Representative of OpCo Borrower certifying that the insurance requirements ofSection 5.06have been implemented and are being complied with by the Loan Parties and on or prior to the expiration of each policy required to be maintained pursuant toSection 5.06, certificates of insurance with respect to each renewal policy and each other insurance policy required to be in effect under this Agreement that has not previously been furnished to the Administrative Agent under this Agreement.If at any time requested by the Administrative Agent,acting reasonably, Borrower shall deliver to the Administrative Agent a duplicate of any policy of insurance required to be in effect under this Agreement;

 

(g)          concurrently with delivery under an OpCo Senior Working Capital Facility, each other report delivered to lenders or agents under such OpCo Senior Working Capital Facility;

 

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(h)          concurrently with delivery under the SPA, written reports concerning the status of theCleaning Work(as defined in the SPA) andCleaning Plan(as defined in the SPA) delivered to Seller under the SPA;

 

(i)          on or before the 30thday following the last day of each calendar month, the monthly reports describing the progress of the construction of the Project that are delivered to the OpCo Senior Administrative Agent under the OpCo Senior Credit Agreement (together with copies of the most recently available monthly progress report received by Borrower under each of the EPC Agreements or any other construction contract with respect to the Project);

 

(j)          concurrently with delivery under the OpCo Senior Credit Agreement, the quarterly information relating to each of SusOils and Sponsor delivered to the OpCo Senior Administrative Agent under Section 5.10(j)of the OpCo Senior Credit Agreement;

 

(k)          concurrently with delivery under the OpCo Senior Credit Agreement, each other report delivered to the OpCo Senior Administrative Agent or the OpCo Senior Lenders under the OpCo Senior Credit Agreement;

 

(l)          concurrently with the notice delivered underSection 5.11, all material documentation related to any notice given underSection 5.11; and

 

(m)          promptly after Administrative Agent’s request therefor, such other information regarding the business, assets, operations or financial condition of the Loan Parties as the Administrative Agent may reasonably request.

 

Section 5.11        Notices. The Loan Parties shall, and Borrower shall cause the OpCo Loan Parties to, promptly (and in any event within five (5) Business Days) upon an Authorized Representative of any Loan Party or OpCo Loan Party obtaining knowledge thereof, give notice to the Administrative Agent of:

 

(a)          notice of the occurrence of anyforce majeure claim, change order request, indemnity claim, material dispute, breach ordefault under any of the Material Project Documents;

 

(b)          details of any change of Applicable Law that would reasonably be expected to have a Material Adverse Effect (including material changes to the California Low Carbon Fuel Standard or the Federal Renewable Fuel Standard);

 

(c)          any material notice or communication given to or received (i) from creditors of any Loan Party or OpCo Loan Party (other than with respect to the OpCo Senior Credit Agreement or any OpCo Senior Replacement Credit Agreement, in which caseclause (m)below applies) generally or (ii) in connection with any Material Project Document;

 

(d)          notice received by it with respect to the cancellation of, adverse change in, or default under, any insurance policy required to be maintained in accordance withSection 5.06;

 

(e)          the filing or commencement of any litigation, investigation, action or proceeding of or before any court, arbitrator or Governmental Authority against or affecting any Loan Party or such OpCo Loan Party, the Site or the Project that, if adversely determined, could reasonably be expected to result in liability to any Loan Party or OpCo Loan Party in an aggregate amount exceeding $500,000 or be materially adverse to the interests of the Loan Parties or the OpCo Loan Parties;

 

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(f)          the occurrence of a Default or an Event of Default or any OpCo Senior Default or OpCo Senior Event of Default or an incipient or mature event of default or termination event under the OpCo Senior Working Capital Facility;

 

(g)          any amendment of any Material Project Document, and correct and complete copies of any Material Project Documents executed after the Closing Date;

 

(h)          any Environmental Claim by any Person against, or with respect to the activities of, the Loan Parties, the OpCo Loan Parties or the Project and any alleged violation of or non-compliance with any Environmental Laws or any Authorizations required by Environmental Laws applicable to any Loan Party or the Project that, if adversely determined, could reasonably be expected to have a Material Adverse Effect;

 

(i)          the occurrence of any ERISA Event in excess of $500,000, together with a written notice setting forth the nature thereof and the action, if any, that such Loan Party, such OpCo Loan Party or ERISA Affiliate proposes to take with respect thereto;

 

(j)          the sale, lease, transfer or other Disposition of, in one transaction or a series of transactions, all or any part of its property in excess of $500,000 per individual Disposition or $1,000,000 in the aggregate per annum in the aggregate per annum for all such Dispositions and/or Events of Loss;

 

(k)          the occurrence of a Bankruptcy of any Loan Party, any OpCo Loan Party or Material Project Counterparty;

 

(l)          the resignation, removal, incapacitation or death of any Qualified CEO or Qualified Officer;

 

(m)          any notice or communication givenby, givento or received by any OpCo Loan Party under, or in connection with, anyOpCo SeniorFinancing Document, any IntercreditorAgreement (as defined in the OpCo Senior Credit Agreement) or any OpCo Senior Replacement Credit Agreement; and;

 

(n)          notice of any condemnation, taking by eminent domain or other taking or seizure by a Governmental Authority with respect to a material portion of the Project or the Site;

 

(o)          any notices provided under any OpCo Senior Working Capital Facility, other than routine or ministerial notices relating to the borrowing of loans thereunder.

 

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Each notice pursuant to Section 5.11(a), (b), (d), (e), (f), (h), (i), (k), (l) or (n) shall be accompanied by a statement of an Authorized Representative of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower and the OpCo Loan Parties propose to take with respect thereto.

 

Section 5.12         Scheduled Calls and Meetings

 

Section 5.09        [Reserved].

 

Section 5.10        [Reserved].

 

Borrower shall arrange to have either (x) a telephonic conference call or (y) if requested by the Administrative Agent, an in-person meeting at the Site, in each case, with the Administrative Agent and Lenders no earlier than fifteen (15) Business Days after the end of each calendar month, which shall be coordinated with the Administrative Agent during normal business hours upon reasonable prior notice to the Lenders, to discuss (i) prior to the Term Conversion Date, the most recent construction report delivered pursuant toSection 5.10(i)and (ii) after the Term Conversion Date, the matters contained in the various financial statements and reports delivered pursuant toSection 5.10, including the status of the Loan Parties and theOpCo Loan Parties and theaffairs, finances and accounts of the Loan Partiesand the OpCo Loan Parties; provided that, the Administrative Agent,shall not request more than two (2) in-person meetings at the Site in any calendar year pursuant to thisSection 5.12.

 

Section 5.13        Use of Proceeds

 

Section 5.11        [Reserved].

 

Section 5.12        [Reserved].

 

(a)          Borrower shall apply the proceeds of the Loans solely (i) for the payment of Project Costs and (ii) as otherwise permitted under (or, if not addressed therein, not prohibited by) the Financing Documents and the OpCo Senior Financing Documents.

 

(b)          The proceeds of the Loans will not be used in violation of Anti-Corruption Laws or applicable Sanctions.

 

Section 5.14        Security. The Loan Parties shall preserve and maintain the security interests granted under the Security Documents and undertake all actions which are necessary or appropriate to: (a) subject to Permitted Liens, maintain the Collateral Agent’s security interest in the Collateral in full force and effect at all times (including the priority thereof) and (b) subject to Permitted Liens, preserve and protect the Collateral and protect and enforce the Loan Parties’ rights and title and the rights of the Collateral Agent and the other Secured Parties to the Collateral, including the making or delivery of all filings and recordations, the payment of all fees and other charges and the issuance of supplemental documentation.

 

Section 5.15        Further Assurances. The Loan Parties shall execute, acknowledge where appropriate, and deliver, and cause to be executed, acknowledged where appropriate, and delivered, from time to time promptly at the reasonable request of any Agent all such instruments and documents as are necessary or appropriate to carry out the intent and purpose of the Financing Documents (including filings, recordings or registrations required to be filed in respect of any Security Document or assignment thereto) necessary to maintain, to the extent permitted by Applicable Law, the Collateral Agent’s perfected security interest in the Collateral (subject to Permitted Liens) to the extent and in the priority required pursuant to the Security Documents.

 

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Section 5.16        Security in Newly Acquired Property and Revenues. Without limiting any other provision of any Financing Document, if any Loan Party shall at any time (a) acquire any interest in a single item of property (other than any Excluded Property) with a value of at least $100,000 or any interest (other than any Excluded Property) in revenues that could aggregate during the term of the agreement under which such receivables arise to over $100,000; or (b) acquire interests in property (other than any Excluded Property) in a single transaction or series of transactions not otherwise subject to the Lien created by the Security Documents having a value of at least $100,000 in the aggregate, in each case not otherwise subject to a Lien pursuant to, and in accordance with, the Security Documents, promptly upon such acquisition, such Loan Party shall execute, deliver and record a supplement to the Security Documents or other documents, subjecting such interest to the Lien created by the Security Documents.

 

Section 5.17        Material Project Documents. Borrower shall cause each OpCo Loan Party to (i) duly and punctually perform and observe all of its material covenants and obligations contained in each Material Project Document to which it is a party, (ii) take all reasonable and necessary action to prevent the termination or cancellation of any Material Project Document in accordance with the terms of such Material Project Document or otherwise (except for the expiration of any Material Project Document in accordance with its terms and not as a result of a breach or default thereunder) and (iii) enforce against the relevant Material Project Counterparty each material covenant or obligation of such Material Project Document, as applicable, in accordance with its terms.

 

Section 5.18        Accounts

 

Section 5.13        [Reserved].

 

(a)          The Loan Parties shall at all times maintain theAccountsand any other account permitted herein in accordance with this Agreement and the other Financing Documents. The Loan Parties shall not maintain any securities accounts or bank accounts other than theAccountsand any other account permitted herein.

 

(b)          At all times Borrower shall cause each OpCo Loan Party to deposit and maintain, or cause to be deposited and maintained, all Project Revenues (as defined in the OpCo Senior Credit Agreement), insurance proceeds and other amounts received into the OpCo Senior Collateral Accounts in accordance with the OpCo Senior Credit Agreement and the other OpCo Senior Financing Documents and request or make only such payments and transfers out of the OpCo Senior Collateral Accounts as permitted by the OpCo Senior Credit Agreement and the other OpCo Senior Financing Documents.

 

Section 5.19        Intellectual Property. The Loan Parties shall, and Borrower shall cause the OpCo Loan parties to, own, or be licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property necessary for the Project and their businesses (as applicable), in each case, as to which the failure of such Loan Party and such OpCo Loan Party to so own or be licensed could reasonably be expected to have a Material Adverse Effect, and the use thereof by such Loan Party and OpCo Loan Party does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

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Section 5.20        Operating Budget and Financial Model

 

Section 5.14        [Reserved].

 

(a)          Submission of Operating Budget and Financial Model.The Loan Parties shall cause OpCo Borrower to, prior to the Term Conversion Dateunder the OpCo Senior Credit Agreementand no later than sixty (60) days before the commencement of each calendar year thereafter, submit to the Administrative Agent (i) a draft of its proposed Operating Budget for the succeeding calendar year and (ii) a draft of its updated Financial Model on a quarterly basis over a period ending no sooner than the latest scheduled termination date of the Initial Material Project Documents. The Loan Parties shall cause OpCo Borrower to, no later than five (5) Business Days after receiving any objection from the Administrative Agent pursuant toSection 5.20(b), submit to the Administrative Agent (i) a revised draft of its proposed Operating Budget for the succeeding calendar year and (ii) a revised draft of its updated Financial Model on a quarterly basis over a period ending no sooner than the latest scheduled termination date of the Initial Material Project Documents. Any such Operating Budget and/or updated Financial Model submitted bythe OpCoBorrower pursuant to thisSection 5.20(a)shall not be effective until approved by the Administrative Agent in accordance withSection 5.20(b)or5.20c)below.

 

(b)          Approval of Operating Budget.Each Operating Budget delivered pursuant toSection 5.20(a)shall not be effective until approved by the Administrative Agent,such approval not to be unreasonably withheld, conditioned, or delayed. The Operating Budget will be deemed to be approved unless the Administrative Agent objects in writing to such Operating Budget within twenty (20) days of receipt thereof. In the event that, pursuant to the immediately preceding sentence, the Operating Budget is not approved by the Administrative Agent(which approval shall not be unreasonably withheld, conditioned, or delayed) or OpCo Borrower has not submitted a proposed Operating Budget in accordance with the terms and conditions herein, an operating budget including the greater of (x) the sum of 100% of the then-actual costs of feedstock, consumables and other variable costs for such calendar year and 105% of the other costs set forth in the Operating Budget for the immediately preceding calendar year and (y) the amounts specified in the Financial Model delivered on the Closing Date for such calendar year (or any updated Financial Model approved by the Administrative Agent), in any case, shall apply until the Operating Budget for the then current calendar year is approved. Copies of each final Operating Budget adopted shall be furnished to the Administrative Agent promptly upon its adoption.

 

(c)          Intra-yearAdjustmentsto Operating Budget.Operating Expenses and Capital Expenditures shall be made in accordance withtheOperating Budgetapproved hereunder, except as set forth in thisSection 5.20(c). Borrower may from time to time adopt an amended Operating Budget for the remainder of any calendar year to which the amended Operating Budget applies, and such amended Operating Budget shall be effective as the Operating Budget for the remainder of such calendar year upon the consent of the Administrative Agent to such amendment, such consent not to be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing and without necessitating any such amendment, but without limiting the applicability ofSection 6.07(d), the OpCo Loan Parties may exceed the aggregate annual Operating Expenses and Capital Expenditures set forth in any Operating Budgetapproved under this Agreementby an amount not to exceed 5% of the aggregate budgeted amount of Operating Expenses and Capital Expenditures for the applicable calendar year.

 

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Section 5.21        Collateral Account Report. The Loan Parties shall provide to the Administrative Agent, within three (3) business days of the end of each calendar month, in electronic format, an itemized summary of all withdrawals from theAccountsmade during such calendar month.The Loan Parties will provide the Administrative Agent and the Lenders the reports required by Section 5.21 of the Senior OpCo Credit Agreement, in electronic format, simultaneously with the provision of the same to the OpCo Senior Administrative Agent under Section 5.21 of the Senior OpCo Credit Agreement.

 

Section 5.22        Construction of the Project; Final Completion.

 

(a)          Borrower shall cause the OpCo Loan Parties to construct, or cause the construction of, the Project in all material respects in accordance with the Material Construction Contracts and the approved plans and specifications thereunder, Prudent Industry Practices, Authorizations by Governmental Authorities and Legal Requirements.

 

(b)          Borrower shall cause the OpCo Loan Parties to cause Final Completion (other than any immaterial punch list items) to be achieved prior to the “Guaranteed Final Acceptance Date” (howsoever defined in each of the EPC Agreements), as such date may be adjusted in accordance with the terms of such EPC Agreements and this Agreement.

 

Section 5.23        Performance Test. Borrower shall permit Administrative Agent, the Lenders and their respective representatives and technical advisorsto witness and verify the Performance Tests to the extent reasonably requested by Administrative Agent,acting at the direction of the Required Lenders,subject to the terms of the applicable Material Construction Contracts. Borrower shall give Administrative Agent notice regarding any proposed Performance Test promptly following Borrower’s receipt of such notice (and, in any event, no less than three (3) Business Days prior to any Performance Test). Borrower shall forward to Administrative Agentand the Lendersthe procedures to be used in the conduct of the Performance Test in connection with such notice. If, upon completion of any Performance Test, Borrower believes that such Performance Test has been satisfied, it shall so notify Administrative Agent andthe Lenders andshall deliver a copy of all test results supporting such conclusion, accompanied by reasonable supporting data.

 

Section 5.24        Operation and Maintenance of Project. Borrower shall cause Project Company to construct, keep, operate and maintain the Project, or cause the same to be constructed, kept, maintained and operated (ordinary wear and tear excepted), in a manner consistent in all material respects with this Agreement, the OpCo Senior Transaction Documentsand Prudent Industry Practices, and make or cause to be made all repairs (structural and non-structural, extraordinary or ordinary) necessary to keep the Project in such condition.

 

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Section 5.25        Certain Post-Closing Obligations.

 

(a)          Borrower shall cause the OpCo Borrower to design and implement theFeedstock Execution Plan(as defined in the OpCo Senior Credit Agreement) as specified therein and provide evidence of such implementation reasonably satisfactory to the Administrative Agent.

 

(b)          Borrower shall cause GCE Operating (as defined in the OpCo Senior Credit Agreement) to implement theExecutive Hiring Plan(as defined in the OpCo Senior Credit Agreement) as specified therein and provide evidence of such implementation reasonably satisfactory to the Administrative Agent.

 

(c)          Borrower shall cause the OpCo Borrower to complete theRail Development Milestones(as defined in the OpCo Senior Credit Agreement) as specified therein and provide evidence of such completed milestones reasonably satisfactory to the Administrative Agent.

 

(d)          Borrower shall cause the OpCo Borrower to complete theGas Supply Commercial Milestones(as defined in the OpCo Senior Credit Agreement) as specified therein and provide evidence of such completed milestones reasonably satisfactory to the Administrative Agent.

 

(e)          Borrower shall cause the OpCo Borrower to complete theEnvironmental and Permitting Milestones(as defined in the OpCo Senior Credit Agreement) as specified therein and provide evidence of such completed milestones reasonably satisfactory to the Administrative Agent.

 

(f)          Borrower shall cause the OpCo Borrower to use commercially reasonable efforts to enter into an OpCo Senior Working Capital Facilityon or before August 1, 2021.7

 

(g)          Borrower shall cause the OpCo Borrower to enter into a product marketing agreement or an offtake agreement with ExxonMobil,in a form reasonably satisfactory to the Administrative Agenton or before June 1, 2021.8

 

(h)          On or prior to the OpCoTranche AFunding Date, Borrower shall deliver, or cause the OpCo Loan Parties to deliver, as applicable, each of the following documents to the Administrative Agent:

 

(i)          a Control Agreement in respect of each Account, duly executed and delivered by the Persons intended to be parties thereto, which Control Agreement shall be in full force and effect and otherwise in form and substance reasonably satisfactory to the Administrative Agent;

 

(ii)         written opinions (dated as of the OpCo Tranche A Funding Date and addressed to the Administrative Agent, the Lenders and the Collateral Agent) of King & Spalding LLP, special New York counsel to the Loan Parties;

 

(iii)        copies of the financial statements delivered to the OpCo Senior Administrative Agent under Section 4.02(d) of the OpCo Senior Credit Agreement;

 

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(iv)        copies of the insurance deliverables delivered to the OpCo Senior Administrative Agent under Section 4.02(l) of the OpCo Senior Credit Agreement; and

 

(v)         an assignment agreement pursuant to which GCE Holdings shall have assigned, and OpCo Borrower shall have assumed, the SPA.

 

(i)          Borrower shall arrange for payment on the OpCo Tranche A Funding Date (including through the application of OpCo Senior Loans on the OpCo Tranche A Funding Date) of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.

 

(j)          Borrower shall enter into a franchise agreement with the Country of Kern, in a form reasonably satisfactory to the Administrative Agent within ninety (90) days following the OpCo Tranche A Funding Date.

 

(k)          Borrower shall cause the OpCo Borrower to deliver to Administrative Agent evidence from the CA Secretary of State (as defined in the OpCo Senior Credit Agreement) of filing of the CA Foreign Qualification (as defined in the OpCo Senior Credit Agreement) upon receipt, but in any event within forty-five (45) days after the OpCo Tranche A Funding Date (as extended by the Administrative Agent in its reasonable discretion).

 

Notwithstanding anything to the contrary in this Section 5.25 or any Schedule referenced herein, (i) at the election of Borrower, Project Company may perform the obligations in this Section 5.25 in lieu of OpCo Borrower and (ii) the time periods for Borrower’s and OpCo Borrower’s compliance with each obligation under this Section 5.25 shall be extended by such additional time period or periods as the Administrative Agent may reasonably agree from time to time.

 

Section 5.26        Performance Testing.

 

(a)          Borrower shall cause the OpCo Loan Parties to permiteach Lender and their respective representatives and technical advisorsto witness and verify the Performance Tests to the extent requested by Administrative Agent(acting at the reasonable direction of the Required Lenders),in each case subject to the terms of the applicable EPC Agreement. Borrower shall cause the OpCo Loan Parties to give Administrative Agentand the Lendersnotice regarding any proposed Performance Test promptly following Borrower’s receipt of such notice (and, in any event, no less than three (3) Business Days prior to any Performance Test). Borrower shall forward to Administrative Agentand the Lendersthe procedures to be used in the conduct of the Performance Test in connection with such notice. If, upon completion of any Performance Test, Borrower believes that such Performance Test has been satisfied, it shall so notify the Administrative Agent andthe Lenders andshall deliver a copy of all test results supporting such conclusion, accompanied by reasonable supporting data.

 

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(b)          Borrower shall cause the OpCo Loan Parties to: (i) in connection with satisfying the conditions for Substantial Completion and/or Final Completion under the OpCo Senior Credit Agreement, perform a Refinery Performance Test, (ii) provide Administrative Agentandthe Lenders notice of each Refinery Performance Test no less than ten (10) Business Days prior to the conducting of such Refinery Performance Test, (iii) conduct each Refinery Performance Test in material compliance with the EPC Agreements, (iv) deliver a copy of each Refinery Performance Test results, accompanied by supporting data and calculations (each, an “Refinery Performance Test Report”) and (v) deliver a copy of the Independent Engineer’s report delivered to the OpCo Senior Administrative Agent underSection 5.26(b)of the OpCo Senior Credit Agreement, which report shall(1) verify for Administrative Agent and the Lenders the results contained in such Refinery Performance Test Report and confirm to Administrative Agent and the Lenders that such Refinery Performance Test was performed in materially compliance with the EPC Agreements or (2) deliver a report to Administrative Agent, the Lenders and Borrower setting forth in reasonable detail any objections of the Independent Engineer to such Refinery Performance Test Report. If any objections are made by the Independent Engineer or the Required Lenders, then Borrower shall cause the OpCo Loan Parties to address such objections to the reasonable satisfaction of the Independent Engineer and the Required Lenders or re-conduct such Refinery Performance Test in accordance with thisSection 5.26(b).

 

Section 5.27        [Reserved].

 

Section 5.28        Qualified CEO and Qualified Officers. The Loan Parties shall cause the OpCo Loan Parties to cause the Qualified CEO and each Qualified Officer to dedicate substantially all of their time and effort to the business of the Loan Parties and the ownership, construction, operation and maintenance of the Project;providedthat (i) Richard Palmer andNoah Verleunshall be permitted to continue dedicating such time and effort to the business and operations of Sponsor and SusOils as are reasonably necessary to perform and satisfy their respective duties and responsibilities in respect of the business and operations of Sponsor and SusOils, (ii) in the event of the death, resignation, removal, incapacitation, death or other cessation of performance of duties (as a result of a family emergency, a personal matter or otherwise) of the Qualified CEO or Qualified Officer (so long as such cessation exceeds a period of consecutive forty-five (45) days) (any such occurrence, a “Qualified Officer Event”), OpCo Borrower shall cause Project Company to, within (i) ninety (90) days in the case of a Qualified Officer Event affecting the Qualified CEO and (ii) sixty (60) days in the case of a Qualified Officer Event affecting any Qualified Officer, appoint a natural person in replacement thereof (which may be the Qualified CEO or another Qualified Officer, to the extent such natural person assumes the role of the Qualified Officer affected by such Qualified Officer Event);provided,further, that (i) any such replacement shall be reasonably acceptable to theAdministrative Agent (such acceptance not to be unreasonably withheld, conditioned or delayed) and (ii) no Default or Event of Default shall occur under thisSection 5.28until the one-hundred eightieth (180th) day following any Qualified Officer Event so long as Project Company is diligently attempting to comply with thisSection 5.28and no Material Adverse Effect is or would reasonably be expected to occur from any failure to comply with thisSection 5.28.

 

Section 5.15        Section 5.29Accounts.

 

(a)          Collateral Account.

 

(i)          Deposits into the Collateral Account. Except as otherwise specified in this Section 5.295.15, Borrower shall deposit, and shall use all reasonable efforts to cause third parties that would otherwise make payments directly to Borrower to deposit, all OpCo Restricted Payments (other than OpCo Restricted Payments permitted pursuant to Section 6.06(a), (b) or (c) of the OpCo Senior Credit Agreement) and all other revenues, payments, cash and proceeds from whatever source received by it (other than Loan proceeds, which shall be deposited into the Construction Account) to be deposited into the Collateral Account.

 

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(ii)         Transfers from the Collateral Account. Borrower shall direct the applicable Depositary Bank to transfer amounts from the Collateral Account at the following times and in the following order of priority:

 

(A)         first, on each Monthly Date, transfer to Borrower’s designee an amount equal to the Borrower Operating Expenses then due and payable (including any Borrower Operating Expenses owing from a prior month);

 

(B)         second, on each Monthly Date and after giving effect to the transfers specified in clause (A) above, (1) first, to the Agents (for the benefit of the Agents) an amount equal to the sum (without duplication) of all fees, costs and expenses and indemnification payments then due and payable to the Agents under the applicable Financing Documents and (2) second, to the Administrative Agent (for the benefit of the applicable Lenders) an amount equal to the sum (without duplication) of all fees, costs and expenses and indemnification payments then due and payable to the Lenders under the applicable Financing Documents;

 

(C)         third, on the Maturity Date and after giving effect to the transfers specified in clauses (A) and (B) above, to Agent (for the benefit of the Lenders) an amount equal to all of the outstanding Obligations (other Obligations that are contingent in nature);

 

(D)         fourth, [reserved];

 

(E)         fifth, on each Quarterly Date and after giving effect to the transfers specified in clauses (A) through (D) above (the amount remaining after giving effect to such transfers, the “Senior Net Cash Flow”): the percentage of the Senior Net Cash Flow payable to the Senior Lender Equity Owners in accordance with the Borrower LLC Agreement;

 

(F)         sixth, on each Quarterly Date and after giving effect to the transfers specified in clauses (A) through (E) above, to the Administrative Agent (for the benefit of the Lenders) for application to the interest due and payable under Section 2.08(c);

 

(G)         seventh, thirteen (13) Business Days followingon each Quarterly Date and after giving effect to the transfers specified in clauses (A) through (F) above, transfer to the Administrative Agent (for the benefit of the Lenders) for applicationan amount equal to the payment of principal and any mandatory prepayment required to made underSection 2.06(b)(i)that is accepted for mandatory prepayment by Lenders pursuant toSection 2.06(b)(i)and2.06(c)ECF Sweep Amount as of such applicable Quarterly Date;

 

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(H)         eighth, thirteen (13) Business Days followingon each Quarterly Date and after giving effect to the transfers specified in clauses (A) through (G) above (the amount remaining after giving effect to such transfers, the “HoldCo Net Cash Flow”): the percentage of the HoldCo Net Cash Flow payable to the HoldCo Lender Equity Owners in accordance with the Borrower LLC Agreement; and

 

(I)         ninth, thirteen (13) Business Days followingon each Quarterly Date and after giving effect to the transfers specified in clauses (A) through (H) above, transfer to the Distribution Suspense Account all amounts remaining on deposit in the Collateral Account.

 

(b)          [Reserved].

 

(c)          Distribution Suspense Account.

 

(i)          Deposits into the Distribution Suspense Account.

 

(A)         The Distribution Suspense Account shall be unfunded on the Closing Date.

 

(B)         Amounts shall be deposited into the Distribution Suspense Account in accordance with Section 5.295.15(a)(ii)(I).

 

(ii)         Transfers from the Distribution Suspense Account. So long as (1) no Default or Event of Default has occurred and is continuing as of any Quarterly Date or would result from the Restricted Payment contemplated by this Section 5.295.15(c) (as certified by a Qualified Officer of Borrower at least five (5) days prior to the proposed date of such Restricted Payment) and (2) such Restricted Payment occurs on or after each Quarterly Date(or, if sooner, after the date that the ECF Prepayment Offer for the applicable quarter has been accepted or rejected in accordance withSection 2.06(c)), and in any event, not more than forty-five (45) days after any Quarterly Date, then Borrower shall be permitted to cause amounts then on deposit in the Distribution Suspense Account to be transferred in the amounts, and to the recipients, specified by Borrower (and the Administrative Agent shall countersign any withdrawal certificates required under any Control Agreements to allow such transfers).

 

(d)          OpCo Senior Collateral Accounts. Borrower shall cause the OpCo Loan Parties to make deposits and withdrawals in respect of the OpCo Senior Collateral Accounts in accordance withSection 5.29of the OpCo Senior Credit Agreement.

 

Section 5.30        Causing of Subsidiary Distributions.Borrower shall cause each OpCo Loan Party to distributethe maximum amount ofcash that such OpCo Loan Party is permitted by each of Applicable Law, the applicable provisions (if any) of the Material Project Documents, the terms of applicable Organizational Documents of such OpCo Loan Party, the OpCo Senior Credit Agreement and the other OpCo Senior Financing Documents, to distribute to Borrower, directly or indirectly,providedthat, each OpCo Loan Party shall be permitted to retain cash in an amount not exceedingthe aggregate amount required or permitted to be reserved under the OpCo Senior Credit Agreement and the other OpCo Senior Financing Documents or otheramounts reserved in accordance with the Operating Budgetthat has been approved under this Agreement.

 

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Section 5.31        Affirmative Covenants in OpCo Senior Transaction Documents.Borrower shall, and shall cause each OpCo Loan Party to, comply with all of its obligations under Article V of the OpCo Senior Transaction Documents.

 

Notwithstanding the foregoing or anything to the contrary herein, prior to the OpCo Senior Credit Agreement Drag Along Expiry Date, (i) to the extent that the OpCo Loan Parties are in compliance (which, for this purpose, shall take into effect any waivers in respect of, or amendments to the OpCo Senior Credit Agreement) with the applicable affirmative covenants set forth in the OpCo Senior Credit Agreement covering substantially the same subject matter as the affirmative covenants set forth in thisArticle V(such covenants, the “Correlative Affirmative Covenants”), such Loan Parties shall be deemed to be in compliance with the respective Correlative Affirmative Covenants herein without any further action of any party hereto and (ii) without limiting the generality of the foregoing, any approval by the OpCo Senior Administrative Agent in respect of any matter under any Correlative Affirmative Covenant shall satisfy the requirement for any approval by the Administrative Agent under the corresponding covenant set forth in this Article V.

 

Section 5.32        Post-Second Amendment Covenants.9

 

(a)          Additional Capital Raise. The Sponsor or one or more other parent companies of Borrower shall, on or prior toSeptember 15, 202110, (i) complete a financing transaction in an aggregate amount equal to at least $35,000,000 (excluding both the “Lender Amendment & Consent Premium” and the “COMA Reimbursement,” as those terms are defined in that certain Consent No. 2 and Amendment No. 2 to Credit Agreement, dated March 26, 2021) (the “Additional Capital Raise”), and (ii) cause $35,000,000 of the Additional Capital Raise to be contributed to the OpCo Borrower to be deposited into the Cash Reserve Account (as defined in the OpCo Senior Credit Agreement). In connection with the Additional Capital Raise, the Sponsor or one or more parent companies of the Borrower on or before April 30, 2021 shall (i) have engaged a placement agent and/or underwriter reasonably acceptable to the Administrative Agent, and (ii) have presented to the Administrative Agent evidence of a financing plan reasonably acceptable to the Administrative Agent (including a filing of a Form S-1 Registration Statement with the United States Securities and Exchange Commission or the execution of an agreement for an alternate non-public sale of securities). Failure to comply strictly with the deadlines in this Section shall be an Event of Default by Borrower under this Agreement.

 

(b)          Financial Governance.

 

(i)          Financial Staffing Plan.

 

(A)         Borrower shall by April 16, 2021, deliver to the Administrative Agent a plan for the engagement of financial staff that is reasonably satisfactory to the Administrative Agent (the “Financial Staffing Plan”).

 

(B)         Borrower shall by June 16, 2021, implement and appoint staff in accordance with the Financial Staffing Plan.

 

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(ii)         Q1 2021 Monthly Financial Statements. Each Loan Party shall, and the Borrower shall cause the OpCo Loan Parties to, on or prior to April 15, 2021, furnish to Administrative Agent (x) the monthly unaudited consolidated financial statements of the Loan Parties and OpCo Loan Parties, (y) the unaudited consolidated financial statements of the OpCo Loan Parties delivered to the OpCo Senior Administrative Agent under Section 5.30(b)(iii)(x) of the OpCo Senior Credit Agreement and (z) the other monthly reports of the OpCo Loan Parties delivered to the OpCo Senior Administrative Agent under Section 5.30(b)(iii)(y) of the OpCo Senior Credit Agreement.

 

(iii)        2021 Operating Budget. The Loan Parties shall cause OpCo Borrower to, promptly after the Second Amendment Effective Date, submit to the Administrative Agent a draft of its proposed Operating Budget for calendar year 2021 and, cause the Operating Budget for calendar year 2021 to be approved or deemed approved by the Administrative Agent on or prior to April 15, 2021.

 

(c)          Q4 2020 Environmental, Social and Governance Report. Each Loan Party shall, on or prior to April 15, 2021, furnish to the Administrative Agent a copy of the environmental, social and governance report in respect of the fiscal quarter ending December 31, 2020 provided to the OpCo Senior Administrative Agent under Section 5.30(c) of the OpCo Senior Credit Agreement.

 

(d)          Q4 2020 SusOils and Sponsor Information. Each Loan Party shall, concurrently with delivery under the OpCo Senior Credit Agreement, furnish to the Administrative Agent the information relating to each of SusOils and Sponsor for the fiscal quarter ending December 31, 2020.

 

(e)          COMA Waiver. Borrower shall cause OpCo Borrower to, on or prior to April 15, 2021, enter into a waiver to the COMA with the Operator, in form and substance reasonably satisfactory to the Administrative Agent, that provides for (i) the delivery of the required reports for January and February 2021 on or before April 15, 2021, (ii) a process for agreeing the 202 budget for COMA items on or prior to April 15, 2021, and (iii) permits reimbursable spending during the period from January 1, 2021 to July 1, 2021, subject to such spending not exceeding $500,000 (the “COMA Reimbursable Spending”).

 

(f)          Financial Advisor. Borrower shall maintain the engagement of Fairlead Financial Advisors, LLC, as financial advisor to Borrower, the other Loan Parties and the OpCo Loan Parties, until the earlier of (i) July 15, 2021 and (ii) the date on which the Administrative Agent shall, at the request of Borrower, have consented to the termination of such engagement.

 

ARTICLE VI

 

NEGATIVE COVENANTS

 

Each Loan Partyhereby agrees that (i) from and after the Closing Date and prior to the OpCo Tranche A Funding Date, to the extent applicable (it being acknowledged and agreed that, prior to the OpCo Tranche A Funding Date, the Acquisition has not occurred, Project Company is not a Loan Party, and neither OpCo Borrower nor OpCo Holdings have rights to the Site or the Project or under any Material Project Document) (other than any Material Project Document to which OpCo Borrower is a party on the Closing Date) and (ii) on the OpCo Tranche A Funding Date (following the Acquisition) and thereafter, in all respects:

 

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Section 6.01        Subsidiaries; Equity Issuances.

 

(a)          No Loan Party shall (i) form or have any Subsidiary (other than (x) in the case of Pledgor, Borrower and (y) in the case of Borrower, OpCo Pledgor) or (ii) subject toSection 6.04hereof, own, or otherwise Control any Capital Stock in, any other Person.

 

(b)          Borrower shall not permit any OpCo Loan Party to form or have any Subsidiary or owner, or otherwise Control any Capital Stock in, any other Person, except as permitted underSection 6.01of the OpCo Senior Credit Agreement.

 

Section 6.02        Indebtedness.

 

(a)          Each Loan Partyshall not create, incur, assume or suffer to exist any Indebtedness, other than (i) Indebtedness incurred under the Financing Documents and (ii)unsecured Indebtedness in an aggregate principal amount not exceeding $100,000 at any time outstanding (such Indebtedness under thisSection 6.02,“Permitted Indebtedness”).

 

(b)          Absent the consent of the Required Lenders,Borrower shall not causeor permitany OpCo Loan Party to create, incur, assume or suffer to exist any Indebtedness, except for OpCo Senior PermittedIndebtedness.

 

Section 6.03        Liens, Etc.

 

(a)          No Loan Party shall create, incur, assume or suffer to exist any Lien upon or with respect to any of its properties of any character (including accounts receivables) whether now owned or hereafter acquired, or assign any accounts or other right to receive income, other than Permitted Liens.

 

(b)          Borrower shall not cause any OpCo Loan Party to create, incur, assume or suffer to exist any Lien upon or with respect to any of its properties of any character (including accounts receivables) whether now owned or hereafter acquired, or assign any accounts or other right to receive income, other thanOpCo SeniorPermitted Liens.

 

Section 6.04        Investments, Advances, Loans.NoLoan Party shallnot, and Borrower shall not cause any OpCo Loan Party to,make any advance, loan or extension of credit to, or make any acquisitions of or Investments (whether by way of transfers of property, contributions to capital, acquisitions of stock, securities, evidences of Indebtedness or otherwise) in, or purchase any stock, bonds, notes, debentures or other securities of, any other Person, other than:

 

(a)          (i) Pledgor’s ownership of the Capital Stock of, and investments in, the Borrower (ii) the Borrower’s ownership of the Capital Stock of, and investments in, the OpCo Pledgor, (iii) the OpCo Pledgor’s ownership of the Capital Stock of, and investments in, the OpCo Borrower and (iv) following the consummation of the Acquisition, the OpCo Borrower’s ownership of the Capital Stock of, and investments in, the Project Company;

 

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(b)          (i) Cash Equivalentsand (ii) the investments, if any, made by, or with the consent of, the Administrative Agent under, and in accordance with, any Control Agreement with respect to the accounts on deposit in the applicable Collateral Account subject to such Control Agreement;

 

(c)          extensions of trade credit in the ordinary course of business to the extent otherwise permitted under the Financing Documents;

 

(d)          to the extent constituting investments, investments in contracts to the extent otherwise permitted under the Financing Documents; and

 

(e)          in the case of any OpCo Loan Party, as permitted under Section 6.04 of the OpCo Senior Credit Agreement.

 

Section 6.05        Principal Place of Business; Business Activities.

 

(a)          Each Loan Partyshall not change its principal place of business from the State of California and shall not maintain any place of business outside of the State of California respectively unless it has given at least thirty (30) days’ prior notice thereof to the Administrative Agent and the Collateral Agent, and each Loan Party has taken all steps then required pursuant to the Security Documents to ensure the maintenance and perfection of the security interests created or purported to be created thereby.Each Loan Partyshall maintain at its principal place of business originals or copies of its principal books and records.

 

(b)          Pledgor shall conduct at any time any activities other than those related to the ownership of Borrower, the transactions contemplated hereby and by the other Financing Documents and any activities incidental to the foregoing.

 

(c)          Borrower shall not conduct any activities other than those related to the ownership of OpCo Pledgor, the transactions contemplated hereby and by the other Financing Documents and any activities incidental to the foregoing.

 

(d)          Borrower shall not permit any OpCo Loan Party to, at any time, conduct any activities other than those related to (i) (x) in the case of OpCo Pledgor, the ownership of OpCo Borrower, (y) in the case of OpCo Borrower, (i) ownership of Project Company, (ii) the transactions contemplated by the OpCo Senior Credit Agreement and the other OpCo Senior Financing Documents, (iii) the Project and the Material Project Documents and (iv) any activities incidental to the foregoing and (z) in the case of Project Company, (i) the transactions contemplated by the OpCo Senior Credit Agreement and the other OpCo Senior Financing Documents, (ii) the Project and the Material Project Documents and (iii) any activities incidental to the foregoing.

 

Section 6.06        Restricted Payments.Each Loan Partyshall not declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, other than:

 

(a)          Restricted Payments to Borrower or any OpCo Loan Party;

 

(b)          Restricted Payments to the extent permitted underSection 6.10;

 

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(c)          Restricted Payments to any Lender to the extent required pursuant toSections 5.29(a)(ii)(E)and(H);

 

(d)          Restricted Payments permitted under Section 6.06(c) of the OpCo Senior Credit Agreement; and

 

(e)          Restricted Payments to the extent permitted or required pursuant toSection 5.29(c)(ii).

 

Borrower shall not causeor permitany OpCo Loan Party to declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment (as defined in the OpCo Senior Credit Agreement), other than as permitted under the OpCo Senior Credit Agreement.

 

Section 6.07       Fundamental Changes; Asset Dispositions and Acquisitions.Each Loan Partyshall not, and Borrower shall not causeor permitany OpCo Loan Party to:

 

(a)          in one transaction or a series of transactions, merge into or consolidate with, or acquire all or any substantial part of the assets or any class of stock or other ownership interests of, any other Person or sell, transfer or otherwise dispose of all or substantially all of its assets to any other Person;

 

(b)          change its legal form, liquidate or dissolve; provided that, for a period ending thirty (30) Business Days following the Initial Funding Date, Borrower shall be permitted to cause OpCo Borrower to (i) convert Project Company to a Delaware limited liability company and (ii) change the name of Project Company;

 

(c)          make or agree to make any amendment to its Organizational Documents to the extent that such amendment could reasonably be expected to be materially adverse to the interests of the Agents or the Lenders;

 

(d)          purchase, acquire or lease any assets other than: (i)solely with respect to Borrower, receipt of distributions from OpCo Pledgor and Loan proceeds, (ii) solely with respect to Pledgor, distributions from Borrower permitted under this Agreement and (iii) solely with respect to any OpCo Loan Party (A)the purchase or lease of assets reasonably required for the Project in accordance with, as applicable, the Construction Budget or Operating Budget (asadjusted in accordance with the provisions of this Agreement) or required under the Material Project Documents to which it is a party, (B) the purchase or lease of assets reasonably required in connection with the Restoration of the Projectpermitted bythis Agreement, (C) any Capital Expenditures orotherinvestments in assets necessary or useful for the business of the Project from the proceeds of any Disposition to the extent permitted hereunder, (D) the purchase or lease of assets otherwise permitted by the Material Project Documents to which it is a party that do not in the aggregate exceed the amount budgeted for such purchases or leases in the most recently approved Construction Budget or Operating Budget(each as approved hereunder by the Required Lenders), as applicable, (E) additional purchases, leases of assets or other Capital Expenditures not to exceed $5,000,000 in the aggregate prior to the Maturity Date (as defined in the OpCo Senior Credit Agreement as in effect as of the date hereof), (F) any assignment of a Material Project Document by GCE Holdings or OpCo Borrower (as applicable) to OpCo Borrower or Project Company (as applicable), (vii) the granting of any Permitted Liens permitted bySection 6.03and (viii) any Permitted Account Transfer (as defined in the OpCo Senior Credit Agreement);

 

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(e)          with respect to any Loan Party, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions all or any part of its property, except as permitted under Section 5.29 of this Agreement;

 

(f)          with respect to any OpCo Loan Party, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its property in excess of $1,000,000 per year in the aggregate except as permitted under Section 6.07(e)of the OpCo Senior Credit Agreement; or

 

(g)          with respect to OpCo Borrower, convey, sell, lease, transfer or otherwise dispose of equipment or other Property directly purchased by OpCo Borrower using the proceeds of loans and credit extensions under any OpCo Senior Working Capital Facility so long as such proceeds are applied to the repayment of obligations under such OpCo Senior Working Capital Facility.

 

Section 6.08        Accounting Changes.Each Loan Partyshall not, and Borrower shall not cause any OpCo Loan Party to, change its fiscal year.

 

Section 6.09        Amendment or Termination of Material Project Documents; Other Restrictions on Material Project Documents; Amendment of OpCo SeniorFinancingDocuments.

 

(a)          Borrower shall not causeor permitany OpCo Loan Party to:

 

(i)          without the prior written consent of the Administrative Agent (acting at the reasonable direction of the Required Lenders), directly or indirectly amend, modify, supplement or grant a consent, approval or waiver under, or permit or consent to the amendment, modification, supplement, consent, approval or waiver of any provision of any Material Project Document (each such amendment, modification, supplement, consent, approval or waiver, a “Project Document Modification”), except any Project Document Modification which, takenas a whole (andtogether with each other contemporaneous Project Document Modification), could not reasonably be expected to bemateriallyadverse to the Loan Parties or the Lenders;providedthat any Project Document Modification which (1) extends or postpones the date of or amends the definition of “Mechanical Completion”, “Substantial Completion”, “Final Acceptance”, “Guaranteed Substantial Completion Date”, “Guaranteed Final Acceptance Date” or any related concepts under the Material Construction Contracts, (2) extends the deadline for payment of any liquidated damages under the Material Construction Contracts, (3) modifies any performance guarantee to reduce the level of such guaranteed performance thereunder, (4) reduces any liquidated damage amount under the Material Construction Contracts, (5) changes the definition of, procedures for or results of the Performance Tests, (6) amends or modifies theMaterial Construction Contracts or the ExxonMobil Offtake Agreement(as defined in the OpCo Senior Credit Agreement) (other than (x) ministerial or administrative amendments, modifications, waivers, consents and approvals and (y) in the case of any amendment or modification of the Material Construction Contracts, any Change Order permitted underclause (b)below) or (7) could otherwise reasonably be expected to have a Material Adverse Effect shall, in each case, require the consent of the Administrative Agent (acting at the reasonable direction of the Required Lenders);

 

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(ii)         directly or indirectly transfer, terminate, cancel or permit or consent to the transfer, termination or cancellation of any Material Project Document (including by exercising any contractual option to terminate, or failing to exercise any contractual option to extend); or

 

(iii)        enter into an Additional Material Project Document unless such Additional Material Project Document could not reasonably be expected to bemateriallyadverse to the Loan Parties or the Lenders.

 

(b)          Notwithstanding anything to the contrary inSection 6.09(a)(i), Borrower shall not causeor permitany OpCo Loan Party to accept, approve or otherwise enter into any change order or similar document or instrument under any Material Project Document (each a “Change Order”) without the prior written consent of the Administrative Agent, acting at the reasonable direction of the Required Lenders, unless such Change Order(i)does not result in the compensation payable under such Material Project Document increasing by an aggregate amount in excess of $250,000 individually for any one Change Order, or $1,000,000 in the aggregate for all Change Orders, or does not utilize any of the contingency specified in the Construction Budget and (ii) does not adversely affect or delay the reasonably anticipated timing of the completion of any Significant Milestone or Substantial Completion.11

 

(c)          Without the prior written consent of the Required Lenders (such consent not to be unreasonably withheld, conditioned or delayed), Borrower shall not causeor permitany OpCo Loan Party to, directly or indirectly amend, modify, supplement or grant a consent, approval or waiver under, orcause orpermit or consent to the amendment, modification, supplement, consent, approval or waiver of any provision of the OpCo SeniorFinancing Documents, except to the extent any such amendment, modification, supplement, consent, approval or waiver could not reasonably be expected to be materially adverse to the Loan Parties or the Lenders.

 

(d)          The Borrower shall not, and shall not permit any Loan Party to, enter into or become subject to any agreement expressly prohibiting or restricting the payment of the Loans, other than to the extent set forth in the OpCo Senior Credit Agreement.

 

(e)          Except as provided herein and in the OpCo Senior Financing Documents, the Borrower shall not and shall not cause or permit its Subsidiaries to directly or indirectly create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any such Subsidiary to: (1) pay dividends or make any other distribution on any of such Subsidiary’s equity interests owned by Borrower or any Subsidiary; (2) pay any Indebtedness owed to Borrower or any other Subsidiary; (3) make loans or advances to Borrower or any other Subsidiary; or (4) transfer any of its property or assets to Borrower or any other Subsidiary.

 

Notwithstanding anything to the contrary in this Section 6.09, each assignment of an Initial Material Project Document (as defined in the OpCo Senior Credit Agreement) by GCE Holdings or OpCo Borrower (as applicable) to OpCo Borrower or Project Company (as applicable) as contemplated by Article IV shall be permitted.

 

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Section 6.10       Transactions with Affiliates.Each Loan Partyshall not, and Borrower shall not cause any OpCo Loan Party to, directly or indirectly enter into any transaction or series of related transactions with an Affiliate of such Loan Party or such OpCo Loan Party, as applicable, without the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), except for (i) (x) in the case of the Loan Parties, the transactions set forth onSchedule 3.23and (y) in the case of the OpCo Loan Parties, the transactions set forth onSchedule 3.23of the OpCo Senior Credit Agreement, (ii) Restricted Payments made in accordance with this Agreement, (iii) equity contributions from one or more parent companies of Pledgor and (iv) transactions in the ordinary course of such Loan Party’s or such OpCo Loan Parties’ (and such Affiliate’s) business and upon fair and reasonable terms no less favorable to such Loan Party or such OpCo Loan Party, as applicable, than it would obtain in comparable arm’s-length transactions with a Person acting in good faith which is not an Affiliate;provided, solely with respect to the foregoing clause (iv), that any transaction or series of related transactions with any Affiliate on or after the Closing Date that are not set forth onSchedule 3.23 of this Agreement or the OpCo Senior Credit Agreementshall require the consent of the Administrative Agent.

 

Notwithstanding anything to the contrary in thisSection 6.10, each assignment of an Initial Material Project Document (as defined in the OpCo Senior Credit Agreement) by GCE Holdings or OpCo Borrower (as applicable) to OpCo Borrower or Project Company (as applicable) as contemplated by Article IV shall be permitted.

 

Section 6.11       Accounts.

 

(a)          No Loan Party shall open, or instruct the Depositary Bank or any other Person to open, any bank accounts other than the Accounts and any other account permitted under this Agreement.

 

(b)          Borrower shall not causeor permitany OpCo Loan Party to open, open, or instructany Depositary Bank(as defined in the OpCo Senior Credit Agreement) or any other Person to open, any bank accounts other than the OpCo Senior Collateral Accounts and any other account permitted under the OpCo Senior Credit Agreement.

 

Section 6.12        Guarantees.

 

(a)          Each Loan Partyshall not assume, guarantee, endorse, contingently agree to purchase or otherwise become liable for Indebtedness or obligations of any other Person except as otherwise permitted under the terms of the Financing Documents.

 

(b)          Borrower shall not causeor permitany OpCo Loan Party to assume, guarantee, endorse, contingently agree to purchase or otherwise become liable for Indebtedness or obligations of any other Person except as otherwise permitted under the ter